In 1845, Massachusetts became the first state in the country to enact a law making abortion, or attempted abortion, a criminal offense. By 1900, nearly every state had a similar statute in place; nine states even went so far as to outright declare it a crime to aid, assist, abet or counsel a woman in securing an illegal abortion.
A century later, we’re seeing the same weaponizing of the law to target, prosecute and silence anyone willing to help connect someone to abortion resources.
In the aftermath of Roe v. Wade falling at the hands of the Supreme Court, much of the discourse has focused on how pregnant people will be criminalized by courts and law enforcement, and how health-care providers are under attack from a spectrum of anti-abortion forces. But more and more, we’re seeing states consider statutes that also aim to destroy the network of people that a pregnant person would need in order to consider an abortion, be it via medication or surgical.
It illustrates how the battle for abortion rights in America affects everyone, including the men who are partners, friends or family of pregnant people. Texas led the charge last fall with Senate Bill 8 — a law that not only made abortion past about six weeks completely illegal, but also specifically targets anyone who “aids and abets” an illegal abortion with the threat of civil lawsuits.
Anti-abortion advocates are clear that they want to test this and other legal manuevers in the post-Roe landscape, and the potential impact is daunting, says Kim Clark, senior attorney for Legal Voice, a nonprofit that advocates for the rights of women and LGBTQ people. “I’m actually most concerned about the so-called ‘aiders and abettors,’ because if you think about it, if you really want to discourage access to abortion care and prevent people from accessing it, there’s nothing quite like a few strategic criminal cases brought against those who can help. Whether that’s a community group, a parent or a husband,” Clark tells me. “Targeting these people will go a long way to creating an atmosphere of fear and really chilling support.”
Abortion funds in Texas have shut down and stopped paying for procedures and travel assistance since the June 24th decision from SCOTUS, fearing out-of-state procedures could put the staff at risk of expensive lawsuits. Hospitals afraid of aggressive interpretations of state law have even turned away pregnant people and delayed care for them, according to the Dallas Morning News.
The state’s Senate Bill 8 is an interesting wrinkle, because it forgoes any enforcement from the state in favor of citizens suing people who provide or assist in an illegal abortion — a novel tactic used to circumvent judicial review. It’s frequently referred to as the “abortion bounty” law because individuals can win up to $10,000 through the successful reporting, and suing, of another person or organization.
Clark notes that this basically creates a financial incentive for the medical surveilling of pregnant women, which can happen anonymously online or within a family. And although there hasn’t been a case of an individual being targeted in a civil lawsuit for passing along information or facilitating travel, the law is so broad that it’s only a matter of time.
Anti-abortion advocates are also trying to clamp down on those helping pregnant people access abortions through criminal statutes; as model state legislation proposed last month by the National Right to Life Committee shows, politicians are pushing to make “conspiring to cause” or “aiding or abetting” abortion an outright felony in several states.
The model legislation’s list of potential offenses includes acts as broad as posting information on a website, offering instructions over the telephone or providing a referral to an “unlawful” abortion provider. It even criminalizes what it dubs the “abortion trafficking of a minor,” which could mean a person is liable for a felony if they drove a child to an abortion clinic. (This is especially problematic given the number of states that do not exempt cases of rape or incest from their abortion bans).
“There’s no question we’re going to see an escalation in the extremism that is embedded in these laws and actions states take, particularly where you have elected prosecutors,” Clark notes. “What we’re already seeing is states seemingly in competition with one another to take more and more drastic steps against abortion.”
Some political leaders, notably those in pro-choice territories like California and Illinois, are maneuvering to create legislation that could shield “aiders and abbettors” by ensuring state officials don’t cooperate with out-of-state prosecution of abortion offenses. Some state officials are even banding together, creating a united front of resources and legal protection across the West Coast. But while Clark says it’s “important and exciting” to see such resistance, she also warns that there are serious limits to these efforts: While states can work to disrupt criminal and civil cases, they can’t actually stop proceedings.
“Of course, we do think there are a lot of very good legal defenses to extreme, very broad applications of the law. For example, criminalizing giving someone information about how to access abortion care — theoretically, that should be protected by the First Amendment,” she says. “But it’s the very same Supreme Court that decided the Dobbs case and brought Roe down. So you’d like to think you can count on constitutional principles, but a lot of things are up in the air.”
It’s a critical juncture in the fight for abortion rights, and a wave of anti-abortion proponents are squaring up to dismantle access in whatever ways they can, inspired by the successes of the past. Some of them even claim that these efforts to punish “aiders and abettors” are moral, because they don’t technically prosecute the pregnant person. But the future chilling effect is obvious, including for the men who never expected they’d be targeted in the battle over Roe.
For now, perhaps the best advice is to stay alert and stay secure when it comes to communication and digital footprint, lest the evidence falls into the wrong hands. People are watching to see if they can snitch on an abortion — and it’s the facilitators who look like the easiest targets.