For Some Local Prosecutors, the Post-Roe World is Already Here

In December 2015, Anna Yocca was arrested for attempting to induce her own abortion with a coat hanger. She spent over a year in jail as Rutherford County, Tennessee, prosecutors tried repeatedly to bring felony charges against her. When an attempted murder charge didn’t stick, they indicted her in February 2016 on charges of aggravated fetal assault. To do so, they relied on a 2014 law intended to criminalize drug use during pregnancy. But with the contested law set to expire in July of that year, and no evidence that Yocca had used drugs, that failed too.

That didn’t deter prosecutors: Next, they brought three new felony charges against the 32-year-old. Facing charges of attempted criminal abortion, aggravated assault with a weapon, and attempted procurement of a miscarriage, Yocca pleaded guilty in January 2017 to the latter in exchange for her release.

Cases like Yocca’s often seem like a glimpse into a dystopian future, especially now, as anxiety mounts over the tenuous fate of Roe v. Wade. When Justice Anthony Kennedy announced his retirement in June and President Trump tapped Brett Kavanaugh, a staunch conservative, to replace him, journalists and advocates were quick to predict doom for reproductive rights. But in many localities across the country, women like Yocca already know what it’s like to live in a post-Roe world, a world dominated by state lawmakers and local prosecutors.

“When they are determined to control and prosecute pregnant women, [prosecutors] are extremely resourceful, if you will, creative, and can be relentless in their determination to find a way to lock up women for having had abortions,” Lynn Paltrow, executive director of National Advocates for Pregnant Women (NAPW), told The Appeal. (Paltrow and her NAPW colleagues advised Yocca’s defense attorney throughout the ordeal.) The Rutherford County district attorney’s office did not respond to requests for comment.

While the overturning of Roe would indeed be devastating to the reproductive freedom of pregnant and non-pregnant women alike, advocates say that more arrests are inevitable either way. “For many of the people we work with and for, Roe has become increasingly meaningless,” says Jill Adams, founder and chief strategist of the University of California, Berkeley School of Law’s Self-Induced Abortion (SIA) Legal Team. “We are in a moment of crisis, we’ve been in a moment of crisis, and how bad the crisis will become is probably a matter of degree.”

Both Adams’s and Paltrow’s organizations have documented dozens of arrests of pregnant women after Roe. Between 1973, the year of the Roe decision, and 2005, NAPW documented 413 cases across 44 states in which “a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty.” The majority of these arrests and detentions were made using criminal laws that were never intended to target pregnant women. Adams and her colleagues at SIA documented 21 post-Roe arrests of women in connection with self-managed abortions induced outside clinical settings, many of which involved ending a pregnancy by self-administering abortion pills.

Feticide laws in particular have increasingly been used to target women who end their pregnancies. Currently, 38 states have fetal homicide laws on the books, the majority of which can be applied at any stage of a pregnancy, according to the National Conference of State Legislatures. Most of these laws were introduced to punish violent acts by third parties against women that result in the end of their pregnancies. But in some states, prosecutors use these laws to punish pregnant women themselves.

Perhaps best known among these cases are those of Bei Bei Shuai and Purvi Patel in Indiana. Lawmakers enacted a feticide statute in the state six years after Roe, two years after the state repealed its ban on abortion.

In 2011, Bei Bei Shuai was charged with attempted feticide in Marion County, Indiana, after trying to end her life by eating rat poison. While being treated for poisoning, she delivered a child that soon died from a bleed in her brain. Shuai spent more than a year in jail before being released after agreeing to plead guilty to criminal recklessness. In exchange, the Marion County prosecutor dropped the attempted murder and feticide charges against her.

In 2013, Patel sought to end her pregnancy using misoprostol and mifepristone, abortifacient drugs she purchased online. After delivering a 25-week-old stillborn fetus at home and disposing of its remains, she sought assistance at a hospital in Mishawaka while rapidly losing blood. Patel was later convicted of feticide and sentenced to 20 years in prison. Though Patel’s sentence was later overturned by an appellate court, both her case and Shuai’s remain prime examples of how feticide laws can be twisted, regardless of their original intent, by prosecutors seeking to burnish their own reputations by punishing pregnant women.

Kathrine Jack, an Indiana-based attorney who represented Shuai and amicus curiae in the Patel case, believes the appellate opinion that overturned Patel’s sentence is binding and should prevent similar prosecutions under the state’s feticide law. “That opinion was pretty clear in saying it was not intended to prosecute the women in relation to their own pregnancies,” Jack said. In March, the state’s feticide law was amended to clarify that it is not to be used against women who end their pregnancies, further solidifying its original intent.

Yet in February, a Madison County prosecutor charged another woman with feticide and involuntary manslaughter after the death of her newborn son, which was attributed by doctors to the 34-year-old’s use of meth and other drugs during her pregnancy. “Every county in Indiana has a prosecutor, and despite the outcome in the Shuai and Patel cases, future cases are in the hands of all the different prosecutors at this point,” said Jack. “Obviously, this prosecutor in Madison has a different interpretation [of the Patel opinion].”

In addition to feticide laws, some local prosecutors are dredging up archaic, rarely used laws to incriminate women who end their pregnancies in nonclinical settings. Such was the case in Chesterfield, Virginia, last year, after police found fetal remains in a woman’s backyard. The woman, Michelle Roberts, was arrested on charges of “producing abortion or miscarriage,” a 1950 law that criminalizes any action taken “with intent to destroy her unborn child.”

Lawyers from SIA, NAPW, and the ACLU of Virginia are all assisting with Roberts’s case. As with feticide laws, advocates argue that the charge brought against Roberts relies on a misinterpretation of the law’s original intent, which was to punish third parties, namely abortion providers. “Michelle is standing trial for a nonexistent crime,” Adams said.

Last September, Judge David Johnson of Chesterfield County rejected a motion to dismiss the case filed by Roberts’s lawyer, writing in his opinion that the law does not exclude the prosecution of expectant mothers. Because the case is ongoing, the commonwealth attorney’s office of Chesterfield County declined to comment.

While Adams and her colleagues are working on a legislative strategy to “clean up antiquated abortion laws,” she said, and build on legal precedent from the Ninth Circuit that struck down Idaho’s abortion ban in 2015, they are also focusing their attention on prosecutorial power.

“Because overzealous prosecutors are reaching and grabbing for whatever charges they can throw that will stick on a person, there’s culture change work that needs to happen in the legal field,” said Adams, adding that groups like hers are trying “to educate members of the bar and bench to avoid unnecessary prosecutions.”

“The legality [of self-managed abortion] at any time in any state is governed by a complex cobweb of criminal and civil laws and regulations, and then it’s influenced by the powers of law enforcement,” she said. “All of this is made even less predictable because of prosecutorial discretion and how far that reaches.”