Updated Jun 24, 2022 - Health
Axios Explains: Abortion

How states enforce anti-abortion laws

Picture of signs that are in support of abortion rights and others that are anti-abortion
Abortion-rights protesters rally at the Los Angeles City Hall on May 14. Photo: Sarah Morris/Getty Images Photo: Sarah Morris/Getty Images

In the wake of the Supreme Court overturning Roe v. Wade and its other precedents, penalties for abortion providers are expected to become more severe, and abortion rights advocates fear they could more forcefully target patients seeking abortions.

Where it stands: Currently, penalties for violating abortion laws vary widely by state, and many state laws specifically say a patient getting an abortion cannot be prosecuted. But that may soon change.

The current penalties abortion providers face

Current penalties for abortion providers vary in each state.

  • Alabama is the only state where performing an abortion of a viable fetus is punishable by life imprisonment.
  • In Mississippi, performing an abortion of a viable fetus is a felony punishable by one to 10 years in prison. If a patient dies during the procedure, the provider could be charged with murder.
  • In other states, including Indiana, Florida and Missouri, violating abortion laws is also considered a felony punishable by large fines and/or imprisonment for anywhere between one and 15 years.

In addition to criminally prosecuting a provider, some states like Kentucky and South Carolina also allow a patient getting an abortion to sue the provider if the procedure was conducted past the allowed time.

  • Violating abortion laws in some states — like Arizona, Arkansas and Ohio —amount to a misdemeanor with lower jail or prison terms.
  • Providers in many states also risk losing their medical licenses if they are convicted of an abortion-related crime.
How "Texas-style" abortion bans work

Texas last year and Oklahoma last month enacted laws that ban abortion when an embryo's cardiac activity has been detected, which happens at around six weeks of pregnancy and before patients are likely to know they are pregnant.

  • The laws' enforcement mechanisms are unprecedented: private citizens, not government agencies or officials, can enforce the law through civil action.
  • The laws incentivize individuals to sue providers and anyone suspected of helping a woman obtain an abortion — and awards at least $10,000 to people who do so successfully.
  • Providers who are successfully sued can be barred from continuing to provide abortions, as well as be subject to paying statutory damages and potentially compensatory damages under both state laws.

Idaho's governor signed a similar measure in March, but it has been temporarily blocked by the state's Supreme Court.

Of note: Oklahoma has another "Texas-style" law in effect that bans nearly all abortions in the state beginning at fertilization. It is known as the most restrictive abortion law in the U.S.

Can a patient be prosecuted?

There are currently no abortion laws in effect that allow a pregnant patient to be prosecuted.

  • Many state laws specifically say that the patient cannot be punished.

Yes, but: Some people who have ended their own pregnancies have been charged under "fetal homicide" or "practicing medicine without a license" state laws, according to Elizabeth Nash, lead state policy analyst for the Guttmacher Institute, a research organization that supports abortion rights.

  • Still, many of those charges have not held up in court.
  • Purvi Patel was sentenced to 20 years in prison in Indiana for "feticide" and "child neglect." Her conviction was later overturned. Prosecutors had alleged Patel induced her own abortion with pills ordered overseas, though there was no sign of the pills in toxicology reports.
  • Earlier this year, a woman in Texas was charged with murder for allegedly causing "the death of an individual by self-induced abortion." A Texas district attorney later dropped the charges, saying that while the incident was "clearly contentious ... it is not a criminal matter" under Texas law.

What we're watching: Now that Roe is overturnEd, abortion rights advocates fear some states will move to pass laws that specifically allow patients to be prosecuted for violating abortion bans, says Kelly Blanchard, president of Ibis Reproductive Health, a reproductive health research organization that supports abortion rights.

What to expect now that Roe v. Wade is overturned

13 states have "trigger" laws in place that immediately ban nearly all abortions now that Roe v. Wade has been overturned by the Supreme Court.

  • Most "trigger" bans penalize the provider if they perform an abortion, except when necessary to save the life of health of the patient.
  • Most of these laws have clauses protecting patients from prosecution. But a grey area exists for those that don't, increasing fears among abortion rights advocates that patients could be targeted.

At least nine states had pre-Roe bans that now take effect.

  • They are not likely to immediately take effect, but Roe's overturn creates a legal path for states to move to enact them. Many of the penalties outlined in these bans are similar to those in current penalties.
  • Arizona has an unenforced pre-Roe law that explicitly says that a patient can be imprisoned for seeking an abortion.

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