Overturning Roe v Wade could lead to the mass criminalisation and incarceration of women in the US

Article by Fair Trials

A leaked document, the authenticity of which has now been confirmed by the US Supreme Court, has revealed that the Court plans to strike down the Roe v. Wade ruling, which would deny women in the US, the legal right to abortion.

The result could mean that abortion providers, the millions of women in the US who seek their services, and countless individuals who provide support to women and providers could face prosecution and jail. This could lead to the unprecedented criminalisation and mass incarceration of women across the US, disproportionately affecting Black and other women of colour, and all women from lower income groups who lack the means to obtain abortion services where they are available legally and safely.

A  number of US states have already passed laws to ban abortion, including Texas, where Lizelle Herrera was arrested in April for allegedly self-inducing an abortion.  The indictment said that she: “intentionally and knowingly cause the death of an individual … by self-induced abortion.”

Up to 13 US states have passed ‘trigger laws’ that would lead to the almost total ban of legal abortions if Roe v Wade is overturned.  As a 2021 report by the National Association of Criminal Defense Lawyers (NACDL) notes: “Roe v. Wade may be the only safeguard preventing the vast expansion of criminal liability in relation to pregnancy and the performance of an abortion.”

The Supreme Court’s proposals can be seen in the context of overcriminalisation in the US and beyond,  where criminal powers are used to oppress certain groups or to address social issues that would be better addressed through investment in poverty alleviation, education, housing and healthcare. Banning legal abortions will not reduce the number of women seeking to terminate their pregnancies but will potentially criminalise millions of women.

The Supreme Court ruling is expected in June.