This week, ProPublica published two studies attributing the deaths of two women to Georgia’s six-week abortion ban – the first since the repeal of the Roe v. Wade. Amber Thurman, 28, took abortion pills but was unable to completely expel the fetal tissue from her body. She developed a severe infection and went to the hospital, where doctors would normally have performed dilation and curettage to remove the remaining tissue. In Thurman’s case, however, doctors did not intervene for about 20 hours. They waited to operate until the situation became serious, and Thurman died.
Candi Miller, a mother of three, suffered from lupus, diabetes and high blood pressure. She had been warned that her health was so poor that she might not survive another pregnancy. When she became pregnant again, unintentionally, she ordered abortion pills online. Like Thurman, Miller did not fully expel the fetal tissue and developed a serious infection. But Miller did not seek medical help. Her family said she was aware of Georgia’s criminal abortion laws and was afraid of what would happen if she sought emergency care. Her husband found her unconscious in bed, her three-year-old daughter by her side.
A state medical board later concluded that Miller and Thurman’s deaths could have been prevented. And at least in Miller’s case, the board established a causal link between Miller’s death and the state’s abortion ban.
Stories of doctors’ reluctance to provide emergency care to pregnant patients have become commonplace since the Supreme Court overturned the ruling. Roe v. Wadeboth in the media and in court. Perhaps even more shocking is that we expected deaths like those of Thurman and Miller based on what we know about the long history of criminalizing abortion.
Abortion opponents have already argued that doctors could have legally intervened to save both Miller and Thurman. They may be right. But history shows that criminal laws do harm not only because they are too narrow, confusing, or contradictory. Criminalization also causes harm because it creates fear in doctors and patients, and that fear often has more to do with the fate of patients than with what a law actually says.
Reading the details reported by ProPublica is especially heartbreaking for anyone who has studied the history of abortion in America. Most historians know that for much of the country’s past, abortion was legal until the point of quickening, that is, until a woman could sense fetal movements. The American Medical Association led a campaign to criminalize abortion in the second half of the 19th century.th Century. Most of these criminal laws included an exception for the life of the patient, and state courts often granted discretion to physicians (but not other health care providers) when they acted in good faith to protect the life and even health of their patients. There is considerable evidence that criminal laws made abortion illegal in the late 19th century.th Century; in fact, the number of procedures seems to have increased. During the Great Depression, the abortion rate rose again.
The 1940s and 1950s saw a spate of prosecutions in which prosecutors charged doctors even when nothing bad had happened to their patients. To protect themselves from liability, non-Catholic private clinics often set up so-called therapeutic abortion committees, which were supposed to certify that a particular procedure fell under the “patient’s life” exception.
In the 1960s, convincing a hospital committee was complicated and expensive, and often only white and relatively wealthy women could do so. As historian Leslie Reagan has shown, the public hospitals that most low-income patients and people of color depended on often did not perform abortions, in part because of the legal risk of violating state criminal laws. And patients themselves had legitimate fears that the criminal law might affect them too—perhaps because a family member would be prosecuted, or because they themselves would be forced to testify or even charged with a crime.
Although abortion became safer in the 1960s and overall maternal morbidity and mortality rates declined, abortion-related deaths among black women actually rose in cities like New York. Women who could not obtain a therapeutic abortion or feared criminal consequences sometimes drank lye or used knitting needles to terminate their pregnancies. As Elizabeth Stevens wrote in 1966, repealing criminal laws seemed difficult to many, and a certain percentage of women who terminated their pregnancies themselves—especially those like Miller or Thurman who were neither white nor wealthy—would “continue to face the death penalty.”
None of this convinced members of the nascent anti-abortion movement of the value of reform. Activists argued that exceptions for the benefit of the patient were unnecessary because the proliferation of antibiotics and the availability of Caesarean sections had made pregnancies far less dangerous. Perhaps most commonly, anti-abortionists insisted that women were threatened not by criminal laws but by abortion itself, which they described as a source of mental illness and physical danger.
When you read the stories of Candi Miller or Amber Thurman, you realize how little has changed. The threat of criminal consequences still keeps doctors reluctant to act. Uncertainty about the legal situation means that people like Miller don’t even go to the emergency room because they are afraid that they too will face criminal consequences.
If anything, new laws may have exacerbated these effects. roeAs historian Alicia Gutierrez-Romine has shown, penalties for providers were sometimes relatively lenient, at least for white male doctors, and many doctors did not face jail time. Georgia’s law, which does not clearly exempt women from criminal consequences, provides for a sentence of 10 years in prison; in Texas, where patients are exempt, sentences of up to life are possible. Doctors often have less discretion in how courts interpret the new criminal laws—in states such as Texas and Oklahoma, state courts have ruled that a doctor’s decision must be objectively reasonable and good faith is not enough.
What hasn’t changed is the impact of Miller and Thurman’s deaths. Neither will stop conservative lawmakers from arguing that criminalization is the best way to honor human life. Some abortion opponents stress that doubts remain about the cause of the two women’s deaths — they argue, for example, that we can’t know why Thurman’s doctors waited to act. Least surprisingly, many in the movement argue that Thurman and Miller died because we don’t criminalize abortion. enoughTheir deaths have already become part of a new call for a federal strategy to block access to abortion pills, whether through policy changes at the Food and Drug Administration or through the use of the Comstock Act, a 19thThe 20th century obscenity law was to be implemented under a future republican administration.
Yet the history of abortion in the United States is also a history of resistance to criminal prohibitions. The question of states’ power to criminalize abortion or related reproductive services is on the ballot in 10 states. The extent of the federal government’s power to regulate abortion — and the prospect of a ban enacted with or without Congress — is also on the ballot in this year’s presidential election. It seems inevitable that there will be more stories like Miller’s and Thurman’s that we haven’t heard yet, but we still have a say in what’s to come. next.
