The Supreme Court has, as expected, overturned Roe v. Wade. The 6-3 decision in Dobbs v. Jackson Women’s Health Organization now makes abortion illegal or severely restricted in several states. The below, originally published in May, has been updated to reflect this reality. The reader service in these stories is still intended to help anyone seeking abortion care no matter where they reside.
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When Seeking an Abortion Can Land You in Jail
By Bindu Bansinath
The illusion that anti-abortion lawmakers wouldn’t try to criminalize abortion seekers was shattered this year with the introduction of a Louisiana bill that would have allowed prosecutors to bring murder charges against them (the bill was revamped and that section was dropped). Though some abortion restrictions don’t explicitly penalize pregnant people, Dana Sussman, acting executive director of the National Advocates for Pregnant Women, says the organization has documented “over 1,700 cases from 1973 to 2020 that criminalize pregnant people” for a number of reasons, from self-managed abortion to stillbirth to suspected drug use. Prosecutors have also used feticide and child abuse or neglect statutes to charge women who ended their pregnancies. In 2015, Purvi Patel was tried on both those counts in Indiana and sentenced to 20 years in prison after allegedly self-managing her abortion (her conviction was eventually overturned).
A prosecutor doesn’t even have to point to a specific statute to arrest someone suspected of aborting: Earlier this year, prior to the SCOTUS ruling on Dobbs, Lizelle Herrera was charged with murder in Texas, despite state law prohibiting pregnant people from being charged with injury to their own fetuses (the charges were later dropped). “Legislatures are going to find themselves up against a reality that today, illegal abortion is done by procuring medication,” says Michelle Oberman, a law professor at Santa Clara University. “There’s no doctor to prosecute. It’s not a ’50s-style sting operation outside the clandestine abortion clinic.”
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At least eight states (Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, and Utah) moved to ban abortion entirely, including medication abortions, in the immediate aftermath of the ruling, which overturned Roe v. Wade. More are expected to follow in the upcoming weeks.
Still, there are steps you can take to protect yourself from legal scrutiny. First, be careful who you talk to about ending a pregnancy. Even texting a trusted friend about your abortion could create a paper trail you will want to avoid if you live in a restricted state. Also, be cautious when talking to medical-care providers. Forty-six states and D.C. require hospitals, physicians, and facilities providing abortions to submit routine confidential reports to the state about the abortions they perform. No laws currently require providers to report self-managed abortions, but that’s not to say it doesn’t happen; in the Patel and Herrera cases, hospital staff contacted police. Remember that miscarriage and medication abortions look identical in a clinical setting as long as the pills have dissolved.
Abortion seekers should be aware of organizations they can ask for help. If you’re looking for legal information about self-managing an abortion, you can contact the If/When/How Repro Legal help-line (844-868-2812) and someone will get back to you within 48 hours — sooner if it’s an emergency. If you’re being investigated, have been arrested, or are otherwise prosecuted for allegedly self-managing your abortion, contact the Repro Legal Defense Fund. If it takes your case, the group can pay for bail and legal expenses, including attorney fees, court costs, bail alternatives, court programming, and more. “We support people to get the resources they need to get out of jail and fight back with a strong defense,” says Rafa Kidvai, the fund’s director.
Keep Your Abortion Private
By Katie Heaney
In 2017, a Mississippi woman named Latice Fisher was charged with second-degree murder after experiencing a stillbirth at home. As evidence, prosecutors cited that she’d searched for an abortion medication online earlier in her pregnancy. Though charges were later dropped, the case raised alarms among abortion-rights activists and cybersecurity experts, who warn that Americans will need to take greater pains to protect their digital privacy now that Roe v. Wade has been overturned. Here are some steps you can take to guard yourself when researching abortion online and on your phone.
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Going incognito isn’t enough.
“A lot of folks assume the incognito browser will hide them from advertising networks,” says Zach Edwards, a cybersecurity researcher. (Targeted ads are one way technology platforms can collect and sell your data.) “That is 100 percent false. It’s only not recording your internet activity in your local browser history.” More important is using a secure browser: Safari blocks trackers by default, as do Brave and Mozilla. Other browsers, like Google Chrome and Microsoft Edge, don’t do it automatically; you’ll need to opt into tracking prevention in settings. For the highest available protection, Edwards recommends Tor, which blocks trackers and ads and automatically clears your history.
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Turn off face ID.
“A court can’t compel you to turn over a password in most circumstances because it’s a testimonial act,” says Alejandra Caraballo, an instructor at Harvard Law School’s Cyberlaw Clinic. But “putting in a fingerprint or a face ID is considered a physical act rather than a testimonial act,” she adds. “The court or law enforcement can compel you” to unlock your phone using either method.
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Talk in person or over the phone.
When discussing possibly sensitive plans and procedures, avoid making plans over text or email. If that’s not possible, avoid language that could later be used to incriminate you. To be even safer, use Signal, an encrypted-messaging service.
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Delete your period or fertility app.
“If you are a person who is using a period-tracker app and you feel you may get pregnant in a state like Texas or Oklahoma, I would not recommend creating a paper trail having to do with your fertility or your health information right now,” says EFF cybersecurity expert Eva Galperin. If you want to minimize risk but still track your menstrual cycle, Galperin recommends the encrypted app Euki — but beware that if your phone is seized by the courts, they may still be able to read the information you’ve entered.
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Leave your phone at home when you can.
The best way to protect your data is to produce as little as possible, says Caraballo. She suggests not bringing your phone to an abortion appointment; turning off your location isn’t necessarily enough. “Our phones could still ping off of cell towers, and law enforcement may target cell towers around clinics,” she explains.
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Pay with cash.
Again, no paper trail. If you have to choose between payment services, Caraballo recommends Apple Pay, which encrypts some data, including individual financial transactions. Venmo and PayPal do not.
