During his campaign, President Donald TrumpDonald TrumpPredictions of disaster for Democrats aren't guarantees of midterm failure A review of President Biden's first year on border policy Hannity after Jan. 6 texted McEnany 'no more stolen election talk' in five-point plan for Trump MORE said women who have abortions should face some form of punishment and repeated his intention to fill Supreme Court vacancies with justices who would overturn Roe v. Wade. With Supreme Court confirmation hearings underway, many of us are asking ourselves: Is Judge Neil Gorsuch a lynchpin of Trump’s crime-and-punishment agenda for abortion? In concrete terms, how many more women will have to go to jail for ending their pregnancies if Gorsuch gets confirmed?
Yes, we said how many more women. Because even with Roe still in place, women throughout the country are being arrested and jailed for ending their own pregnancies. The SIA Legal Team has uncovered 17 known arrests or convictions in connection with alleged self-induced abortion since 2005. Studies suggest there are hundreds of thousands of women in this country who have researched how to end pregnancies on their own outside of the formal healthcare system.
And, these numbers are likely to increase as clinic-based abortion care is further regulated out of reach in this hostile political environment.
Our own history and experience around the globe shows that women who need abortions will do whatever they have to do. Thanks to medical and technological advancements, such as the abortion pill and online pharmacies, self-induction need not be the risky endeavor it was in the past. However, as the physical risk of self-administered abortion shrinks, the risk of arrest looms larger.
While a few states have explicit bans on self-administered abortion care, the bigger threat stems from roughly 40 other different types of laws that politically motivated prosecutors can wield as weapons against people who end their own pregnancies. Combine prosecutorial discretion, judicial appointments, renewed attempts – in states such as Texas, Idaho, and Florida – to outlaw abortion, plus Roe in the crosshairs, and we have a justice system primed to deliver on Trump’s campaign commitment to punish women who have abortions. Gorsuch on the Court would take us one big step closer.
Gorsuch has demonstrated he will go to extraordinary lengths to block women’s access to basic reproductive health care, even under current jurisprudence. His prior ruling in favor of Hobby Lobby, which allowed the company to deny its employees coverage for contraception, his decision to side with Utah Gov. Gary Herbert’s effort to defund Planned Parenthood, and his writings that criticize the constitutional principles underlying reproductive rights all suggest he would not uphold Roe, if confirmed.
That is why we don't just need a Supreme Court justice who will leave Roe intact. We need a Supreme Court justice who will fulfill the unfinished promise of Roe: the full decriminalization of abortion. We need someone who recognizes access to safe, effective, affordable abortion, including self-induced abortion, is vital to the fulfillment of our constitutional rights – especially given the president’s expressed desire to punish people who have abortions.
This is no time to tread lightly or sidestep a subject of such gravity. We are counting on members of the Senate Judiciary Committee to ask full, detailed questions of this nominee and demand the honest, complete answers we deserve.
If they don’t uncover the truth for themselves and for the American people, we risk a future, foretold by Trump, when large swaths of women will be routinely punished for their reproductive decisions. Then the question becomes: if abortion is a crime, how much time should a woman serve?
Andrea Miller is the president of National Institute for Reproductive Health; and Jill E. Adams, is the executive director of the Center on Reproductive Rights and Justice at University of California, Berkeley, School of Law.
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