Wombs as Crime Scenes: What Happens When Pregnant Women Lose Their Civil Rights
This month, Anna Yocca was released from jail, following over a year of incarceration. Though her case may seem extreme, it's really the most recent high-profile example of a troubling new trend: women being arrested and prosecuted—and often accused of...
In September 2015, Anna Yocca filled up at bathtub at her home in Murfreesboro, Tennessee, a small city about 40 minutes southeast of Nashville, and inserted a wire coat hanger into her womb. She was around 24 weeks pregnant at the time.
After Yocca started to bleed heavily, her boyfriend took her to Saint Thomas Rutherford Hospital—which is owned and operated by Ascension Health, a large "faith-based" Catholic healthcare system—to seek medical help. Physicians stabilized her condition, but she was later transferred to Saint Thomas Midtown Hospital in Nashville. Approximately two weeks after she first entered the hospital, Yocca underwent an emergency C-section. The doctors delivered a 1.5-pound boy, who was placed in the custody of the Department of Children Services.
Two months later, Yocca was arrested and charged with first-degree murder for attempting to terminate her own pregnancy. According to Detective Tommy Roberts, who arrested Yocca, doctors and nurses reported that she had made "disturbing statements" about wanting to end her pregnancy. Murfreesboro Police Sgt. Kyle Evans, who serves as the department's media spokesperson, told the local CBS affiliate, "The mother had made very incriminating statements and very concerning statements regarding wanting to end the child's life. The whole time she was concerned for her health, her safety, and never gave any attention to the health and safety to the unborn child."
Yocca's lawyer, state-appointed public defender Gerald Melton (who has not responded to multiple requests for comment), filed a motion to dismiss the homicide charge, arguing that Tennessee's definition of attempted first-degree murder includes an exception for acts by the pregnant mother toward her own embryo or fetus. This motion was granted on February 29, 2016, and two weeks later Yocca was arraigned on a lesser charge of aggravated fetal assault. In November of the same year, this charge was replaced by three others: aggravated assault with a weapon, attempted procurement of a miscarriage, and attempted criminal abortion. The latter two charges stem from laws enacted in the late 1800s. Yocca was arraigned on these new charges on November 28, 2016, and pled not guilty to each. Unable to pay the $200,000 bond for her release, she was detained throughout this entire ordeal.
Then on January 9, 2017, Yocca entered a guilty plea to attempted procurement of a miscarriage—a class E felony—and received a sentence of one year in jail, with credit for time served. The charges of aggravated assault with a weapon and attempted criminal abortion were dismissed as part of the plea agreement. Since she already served time for over a year while waiting for trial, she was released.
The whole time she was concerned for her health, her safety, and never gave any attention to the health and safety to the unborn child.
Advocates are celebrating the fact that she's no longer incarcerated, but they fear that her conviction sets a worrying precedent: Though Yocca is free to go home, she is technically a felon. "Our concern is that it puts an individual woman at risk who terminates on her own, but also puts all women's abortion rights at risk by suggesting that this is somehow a crime, that there is a victim," said Sara Ainsworth, a lawyer who focuses on advancing women's legal rights.
Since the Supreme Court decision in Roe vs. Wade, abortion has been legal throughout the US; for decades, even the flagbearers of the anti-abortion movement have stressed that they don't believe in criminalizing women who choose to terminate their pregnancies. In March of this year, Jeanne Mancini, President of the March for Life Education and Defense Fund, said, "No pro-lifer would ever want to punish a woman who has chosen abortion. This is against the very nature of what we are about." And yet, Yocca was punished.
Her case has emerged as a lightning rod for people on both sides of the abortion debate. This is largely due to the circumstances surrounding it: Someone who self-induces an abortion earlier in the pregnancy, with herbs or pills ordered on the internet, is more difficult to "catch" and does not have a viable fetus to depict as a "victim." In addition, even people who support abortion rights may balk at the advanced state of Yocca's pregnancy. Most states (43) prohibit abortions after a certain point, and the fact that physicians were able to deliver a premature baby can make Yocca seem like a less than sympathetic figure.
The method she chose is also provocative. "The optics of a woman using a coat hanger—people have a gut-level, emotional reaction to that," said Farah Diaz-Tello, senior counsel for the Self-Induced Abortion (SIA) Legal Team. "But the natural, logical conclusion to criminalization is that pregnant individuals become second-class citizens."
While Yocca's case may seem extreme, it's far from a rare occurrence. Yocca is part of a growing cohort of pregnant women whom prosecutors have charged with crimes against their fetus. Independently, they may seem like isolated incidents, but collectively, a pattern emerges: According to a peer-reviewed study published by National Advocates for Pregnant Women (NAPW) in 2014, hundreds of pregnant women have had their civil rights violated in the past three decades in the name of protecting "fertilized eggs, embryos, or fetuses."
In 2010, for instance, Iowa mom Christine Taylor was arrested because she fell down the stairs while pregnant. Taylor was carrying her third child and fell down the stairs after an upsetting conversation with her estranged husband. Paramedics took Taylor to the emergency room because she wanted to make sure the fetus was okay after the fall, and at the hospital she confided to a nurse that she wasn't sure if she wanted to continue the pregnancy, since her husband had left her. The nurse called over a doctor, who called the police, who sent her to jail. Taylor was charged with attempted feticide. The charges against Taylor were ultimately dropped, but mainly because her doctor confirmed she was in the second—not third—trimester of her pregnancy. The fact remains that she was arrested for falling down the stairs while pregnant.
Following Christine Taylor's case, several other women attracted media attention for facing jail time for endangering fetuses they were carrying: In 2011, there was Bei Bei Shuai, a Chinese immigrant who was held in a high-security Indiana prison for 435 days after being charged with murder and attempted feticide after she miscarried following a suicide attempt. In 2013, she pled guilty to a misdemeanor charge of criminal recklessness and was released with time served, like Anna Yocca. In 2013, Purvi Patel, another woman living in Indiana, was sentenced to 20 years in prison for feticide and neglect of a dependent after she went to a hospital with severe vaginal bleeding and eventually told the doctor she had miscarried. When she woke up from sedation, a police officer was standing by her bed. The doctor and the police searched for the fetus and found it in a dumpster, where Patel said she left it. The police later found text messages from Patel to a friend saying she took pills she ordered online. Despite the fact that there were no traces of abortifacient in her blood, Patel was convicted, contradictorily, of "both of killing a baby and killing a fetus."
In 2014, Jennifer Ann Whalen was incarcerated in Pennsylvania for giving her daughter abortion pills ordered off the internet. In April of 2015, a woman named Anne Bynum in Arkansas was charged with "concealing birth" and "abuse of a corpse" after going to a hospital with a stillborn fetus in a bag; Bynum had also taken pills to induce an abortion at home. In June of 2015, Georgia woman Kenlissa Jones was charged with murder after taking pills that she had ordered online. She was five months pregnant at the time, and delivered the fetus in the car. She drove to the hospital, where it died half an hour later. Jones was charged with malice murder, which is punishable by death or life imprisonment. The charge was dropped the next day.
In each of these cases, a woman essentially was stripped of her human rights because she was pregnant: These women were detained, deprived of liberty, and criminally investigated in the name of protecting the fetuses they were carrying. The repercussions of their treatment extend far beyond women who try to abort at home—advocates warn that criminalizing women who self-induce abortions puts all pregnant women at risk. If any woman who loses a pregnancy is a potential criminal, then the government can investigate, or even potentially punish, women with wanted pregnancies who suffer miscarriages or stillbirths. This is something Anna Yocca's legal team noted in an October 2016 motion to dismiss the original aggravated assault charge against her. In a statement, her lawyers argued that the state's overzealous prosecution could subject all women to "surveillance and possible prosecution from the moment they become pregnant."
The natural, logical conclusion to criminalization is that pregnant individuals become second-class citizens.
"For the entire 40 weeks of pregnancy a woman's every action, inaction, or decision could be the basis for a criminal charge of assault," Yocca's lawyers said. "The additional absurd, illogical, and unjust results that could spring from this interpretation are boundless."
This is a fear that Diaz-Tello of the SIA Legal Team shares. "What are we going to do if a pregnant woman is involved in a car crash or slips on an icy sidewalk or even picks up a heavy toddler?" she demanded. "Where do you draw that line? If the state can step in and punish people for the outcome of their pregnancy, and there is no logical place to draw it. The line becomes arbitrary. If somebody doesn't like the way a pregnant person is conducting themselves during a pregnancy, that could become a crime."
Though there was a smattering of arrests over self-induced abortion in the 1990s, experts say such cases have proliferated since 2010. There are a few, interlocking reasons for this. Perhaps most significantly, hundreds of anti-abortion laws have been passed since 2010, drastically reducing abortion access in large swaths of the South and Midwest by imposing burdensome restrictions and shutting down clinics. In these states, getting an abortion is not easy and may prove impossible for women of low economic means.
There are currently 27 states in the US that require women to wait a specific amount of time between mandatory counseling and the abortion procedure, according to the Guttmacher Institute. The two-trip requirement, combined with the fact that 90 percent of counties do not have abortion providers, means that millions of women are forced to drive long distances twice just to access care, creating steep barriers for people without flexible work schedules, the capacity to get childcare, transportation options, and disposable income. And then there is the cost of the procedure. Early abortions start around $500 and get more expensive as pregnancy progresses. That's a lot of money, particularly if gas, hotel, and other travel costs are loaded on top.
Take Tennessee, where Yocca lived. "In 2015, we saw a lot of the abortion restrictions come through that had not yet made it to Tennessee," said Allison Glass, who serves as director of a statewide reproductive freedom coalition, noting that two medically unnecessary restrictions favored by anti-abortion politicians were already in place, which had forced several providers in the state to shut down. In 2015, she said, Tennessee passed its own two-trip requirement, with a mandatory 48-hour waiting period. "That's definitely had a big impact on the ability of clinics to offer services and driven up the cost," Glass said.
Somebody who feels like this—inflicting that level of pain into your own body—is their best choice, we have to understand that she was at some point of desperation.
In addition, public funding is only available for abortion in cases of life endangerment, rape, or incest, which can make it unaffordable for people without private insurance. Tennessee has seven abortion clinics, including two in Nashville near when Yocca lived, but there are plenty of reasons why she might not have been able or willing to make that trip twice.
Yocca has not talked to the media or spoken publicly about why she did what she did, during court proceedings invoking her right to remain silent—but a coat hanger is no one's first choice. "To me, that's a desperate cry for help," said Cherisse Scott, founder of SisterReach, a reproductive justice organization in Tennessee. "I don't know her reason, but I bet it wasn't a haphazard one. Somebody who feels like this—inflicting that level of pain into your own body—is their best choice, we have to understand that she was at some point of desperation."
Another reason for the rise in self-induced abortion arrests is increased awareness and availability of medical abortion, also known as "abortion pills." Today, medical abortion accounts for nearly half of all pregnancy terminations at Planned Parenthood in the U.S. This method involves a combined regimen of mifepristone and misoprostol, and is a highly safe and effective procedure for an abortion up to 63 days (Taking just misoprostol or just mifepristone is also effective, but less so). Furthermore, research shows women who are eligible for medical abortion can take it just as safely and effectively on their own, away from a medical office.
For women in desperate or difficult situations, who can't access abortion through official channels, ordering pills online can seem like a good alternative—appearing safer, easier, and more discreet than "traditional" methods. Most reproductive rights advocates, women seeking abortions, and healthcare providers agree that seeking abortion care in a clinic is preferable to self-inducing. Clinics have trained staff and medical facilities to ensure that the procedure is as safe and effective as possible, whereas on the internet, sham pharmacies abound, and there is no guarantee that the pills are what they purport to be.
That said, there are a handful of highly respected, trusted organizations dedicated to helping women access abortion, using the pills, in countries where abortion is illegal. Women on Web, a non-profit online abortion service based in the Netherlands, has helped approximately 50,000 women perform abortions at home by sending pills through the mail. (Women on Web does not ship to the US.) There is no doubt that these medications have changed the face of self-induced abortion, and, as Women on Web demonstrates, this change is largely for the better. However as more women in the US attempt to terminate by taking pills ordered online, so are more women being arrested when their actions come to the attention of the authorities.
"As long as there has been pregnancy, there has been abortion, and as long as there has been abortion, there has been self-induced abortion," said Jill Adams, the chief strategist of the SIA Legal Team and executive director at the Center on Reproductive Rights and Justice. "No one should face arrest or jail for ending pregnancy, whether it was intentional or not, but it's something we are seeing more of." The SIA Legal Team knows of 17 women who've been arrested since 2005, she added, and they strongly suspect there are more they don't know of "because people are probably taking plea deals at the trial court level."
State laws differ, and only a handful of states have laws that explicitly prohibit self-induced abortion (some which predate Roe). As a result, prosecutors have brought a panoply of charges that were not meant to be applied in this way, including murder, manslaughter, neglect, feticide, aggravated assault, criminal abortion, procurement of a miscarriage, criminal recklessness, abuse of a corpse, and more. It's like prosecutors are throwing charges at the wall to see what sticks; there is great variability and little consistency in their legal strategies.
"We've seen very creative, egregious prosecutors taking laws and manipulating them far beyond their reading," Adams said.
In some cases, the laws being used to prosecute self-induced abortion cases were actually intended to protect pregnant women from violence or children from parents who are behaving dangerously. The 2004 Unborn Victims of Violence Act, passed in response to the murder of Laci Peterson, recognizes a fetus in utero as a legal victim if injured or killed during the commission of a violent crime. Thirty-eight states have their own "two-victim" laws, meaning it is considered a separate crime to harm a fetus. However in most cases, these laws include exceptions for acts with respect to someone's own pregnancy.
Prosecutors are essentially misusing criminal codes to wage moral or political crusades, according to Ainsworth. "In cases like Anna's, prosecutors are not using laws where anyone said they want to make it a crime to terminate their own pregnancy," she explained. "These laws were never intended to be used against women in these circumstances. There is not a playbook—these individual prosecutors in these counties, if a case comes to their attention, it's like, 'Well, gosh, that's wrong, I should prosecute them.'"
No one should have to choose between facing a life-threatening situation alone, like bleeding out, or seeking a prison term.
Advocates warn that this type of overzealous prosecution doesn't just have damning legal and ethical repercussions—there is also the possibility that it will dissuade women from seeking life-saving medical attention. In all of the cases described above, a woman was arrested because she sought medical care, and hospital staff reported her to the police. This is not only a profound violation of privacy, but also sets a dangerous precedent that will result in deaths. If people are afraid that visiting a hospital will land them in jail, they won't go, even when they are in desperate need of help.
"We as a society should hold as a number one priority that no one should have to choose between facing a life-threatening situation alone, like bleeding out, or seeking a prison term," said Adams. "Anna was prosecuted because she sought help and disclosed what happened, and when someone is prosecuted for doing that, that sends a message to other women that medical care won't be a safe haven for them. We know from history that that kind of dissuasive message has deadly consequences."
After seeing what happened to Yocca, it's not unreasonable to expect that someone in a similar situation, who is bleeding heavily at home, would be reluctant to go to a hospital or be honest with their doctors. This will inevitably cause the doctor-patient relationship to deteriorate, not to mention the quality of care.
"Criminalization will providers put in situations where they can't necessarily give the best healthcare to their patients, and patients may not reveal information to them that is necessary for the provider to give the best care possible," said Elizabeth Nash, Senior State Issues Manager at the Guttmacher Institute. "Obviously we've seen this in the past, but if there are criminal penalties for women, then we are going to see DAs try to build cases, and all that does is further pull women away from the medical system."
When women are criminalized for the outcomes of their pregnancies, wombs become crime scenes. When states monitor reproduction, women are dehumanized and relegated to baby carriers. When people are punished for the choices they make about their own bodies, including when to have children, they are not free. Incarceration is an agent of intimidation and fear, and women will die to avoid it.
President-elect Donald Trump is on record saying there would "have to be some form of punishment" for women who have abortions if the procedure were outlawed in the US. He later backtracked, but the sentiment is clear. His meaning lingers. A Glover Park Group survey found that 39 percent of Trump voters think a woman seeking an abortion should be punished if the procedure is made illegal in America. In January, an Idaho lawmaker said he planned to put forward a bill that would classify abortion as first-degree murder, for the mother as well as the provider.
"We're deeply concerned with the increase in criminalization tied to seeking abortion care," said Renee Bracey Sherman, the senior public affairs manager of the National Network of Abortion Funds (NNAF). "In several states, women, particularly women of color, have been arrested for or on suspicion of self-inducing their abortions, or after a miscarriage. No one should feel unsafe or risk arrest simply for seeking an abortion."
Whether or not the Trump administration manages to engineer the overthrow of Roe v. Wade, there is no doubt that under its reign, abortion will become harder to access. By defunding Planned Parenthood, by allowing Congress to pass laws that restrict abortion, and by filling lower courts with judges who will allow state lawmakers to get away with anti-choice legislation, abortion could quickly become an option available to only a privileged few.
Without accessible, affordable access abortion, women in America will do what women throughout the entire course of history have done—they will take matters into their own hands, whether that's with pessaries of crocodile dung, pennyroyal tea, pills ordered off the internet, or, yes, coat hangers. If prosecutors and legislators don't want women resorting to these desperate methods, there is a simple solution: ensure birth control and abortion care are safe, affordable and accessible.