What’s the Answer to Abortion in the Age of the Prison-Industrial Complex? Lock Women Up and Throw Away the Key

A mini-documentary on YouTube from 2007 has recently gotten a new lease on life. The filmmaker asks protesters outside of a women’s health clinic in Libertyville, Illinois whether they think abortion should be illegal. They do. What should the penalties be, he asks? What happens next is fascinating: they fumble.

Anna Quindlen, writing for Newsweek in 2007, noted that “the doctrinaire suddenly turn squirrelly at the prospect of throwing women in jail.” Some say they would just pray for the woman. Some grasp at quasi-legal reasoning, saying the woman should be punished based on her level of awareness that she was “killing her child.”

The inconsistency isn’t isolated to clinic protestors. Remember Herman Cain’s incoherent position on abortion? “I believe that life begins at conception. And abortion under no circumstances.” And then moments later: “[I]t comes down to it’s not the government’s role or anybody else’s role to make that decision. …  So what I’m saying is it ultimately gets down to a choice that that family or that mother has to make.” He later clarified that he was referring to an individual family’s decision about abortion, not “the whole big issue” of abortion. He was not talking about women’s access to health care, he was talking about his family’s choice. That’s different.

Cain’s thinking reflects the bad-old-days before Roe v. Wade, when illegal abortion was a misdemeanor reserved for the women who couldn’t afford a flight to California or Mexico. Sure, women died inflicting all manner of horrors upon themselves in desperate attempts to end pregnancies. But daughters of millionaires could quietly leave town and get things “taken care of.”

But that was then, this is now.

What we have now, as Katha Pollitt explains, is a concerted movement to redefine personhood to include fertilized eggs, embryos, and fetuses “in so many parts of the law that when the Supreme Court finally revisits Roe v. Wade, a woman’s right to terminate her pregnancy will look like a bizarre exception.” In the intervening decades since Roe, 38 states have passed laws that create a crime for causing the death of a fetus (feticide or fetal homicide), at least 23 of which apply at the earliest stages of pregnancy.

What we have now is a what Professor Angela Davis calls a “prison industrial complex”: a system of for-profit prisons so hungry for more inmates that it drives immigration policy, and pays off judges to fill jail cells with children. A system so bloated that rural economies have become dependent upon the influx of inmates, mostly young black and Latino men. We’ve lost our belief that women are too delicate, vulnerable, or necessary to family life to incarcerate: since the 1970s, the rate of incarceration for women has increased over 700%.

We have lawmakers admit that they believe that women should face “serious” criminal penalties for having abortions.  We have so dismantled the right to privacy that state-mandated technological surveillance can literally invade women’s bodies.  We have Kafkaesque bedside interrogations and arrests of women who fall down stairs when they admit ambivalence about young single motherhood.

It is not hard to see which way the wind is blowing. Indeed, this has been a long time coming. Writing in 2006, National Advocates for Pregnant Women‘s Executive Director Lynn Paltrow observed:

[I]t’s worth remembering that much has changed since 1973, long before states began declaring that zygotes are full persons under the law and before the US became the country with the largest prison population and the highest rate of incarceration in the world.

Fast forward to the present day, NAPW is helping to represent two women who are facing murder trials for losing pregnancies. Bei Bei Shuai spent over a year in an Indiana jail when her friends rescued her from a suicide attempt during pregnancy, but doctors were unable to save her baby’s life. Rennie Gibbs, the odds of a healthy pregnancy outcome already stacked against her due to her youth, race, poverty, and state of residence, suffered a miscarriage and is being tried for “depraved heart” murder in Mississippi. If women are being prosecuted for murder for unintentional pregnancy losses, we can expect no less for women who seek abortions. In fact, women are already being arrested for having abortions. While right-to-life groups claim that they see women as “second victims” of abortion rather than perpetrators, just this week, a deputy Attorney General from Idaho defended the state’s right to arrest Jennie McCormack, a woman who terminated a pregnancy using misoprostol obtained through the internet (audio of Ninth Circuit oral argument).

Make no mistake: the criminalization of abortion will send women to jail. Groups around the country are hard at work to ensure that if abortion becomes a crime again, it will become the crime of murder. For better or for worse, there is no going back to the days when clinic protesters weren’t sure what to do with women. The answer from organizations seeking to re-criminalize abortion is now is loud and clear: lock them up for a very long time.

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  • j-rae

    It will all depend on who your friends and neighbors are and what their opinions are.

    If you are thought of as someone who is chaste and good it is a miscarriage.

    If you are thought of as a slutty slut, divorced, out of wedlock child, non-church goer or any of thousands of other things that  might be disapproved of it was a self-abortion. (off to jail with you)

    Ever expressed the opinion that you don’t want children? abortion

    Used contraceptives? abortion

    Went to a bar and had a drink, or 2 or 3? abortion

    Income lower middle class or less? abortion

    Since a large number of pregnancy’s end in miscarriage in the first 3 months there will be plenty of new inmates for those private prisons.

    At least until women figure out that forgoing prenatal care until the 4th or 5th month and the greatest risk of miscarriage has past is the best way to stay out of jail.

    Personally, I know a few women who have done an at home pregnancy test when they are a few days late and it is positive. A couple of weeks later they start their period and another test is negative. In the past, before EPT, this was considered a late period. In the future it might be considered life without parole.


  • princess-jourdan

    JRae makes a good point, and you might find it interesting to know that this system of citizens and neighbors spying and tattling on one another was used during the Third Reich in Germany. It was impossible for the S.S. to keep tabs on every single citizen, so they encouraged the German people to watch each other and report any strange instances to the S.S. Millions of letters to the S.S. from ordinary citizens were found boxed up in archives, and they paint a picture much like the one JRae has described. “My Fuher, I have noticed that my neighbor does not leave her house often, and even though she is not married she never entertains any male guests at her house. In fact, the only visitors I ever see coming to her home are a few particular women. I am suspicious of her sexual orientation, and I think someone should look into this…”


    Scary shit.

  • coralsea

    I agree with both JRae and Princess Jourdan.  When a significant number of people adopt a mindset–based on fear, whether of religious condemnation, being invaded by some frightening “other,” etc.–then blaming, pointing fingers, condemning, and making assumptions based on superficial characteristics becomes the order of the day.


    Given the current climate of hatred and attempts to control women, gay people, poor people, etc., along with the U.S.’s love of criminalizing poverty and illness and incarcerating people rather than treating them or ensuring that they have the resources (education, access to jobs with a living wage) to succeed, it’s not a stretch to imagine the widespread criminalization of miscarriages.

  • princess-jourdan

    CoralSea, in many Latin American countries where abortion is 100% illegal with no exceptions, the widespread criminalization of miscarriages actually exists!! When a woman becomes pregnant and suddenly is no longer pregnant because of a miscarriage or if complications arise during the pregnancy, all it takes is one phone call to the police from a nosey neighbor or relative or anyone else who might be upset and holding any kind of grudge towards the woman, and the police show up at her home to haul her away in handcuffs.

  • coralsea

    Princess Jourdan — I was not aware that women who have miscarriages in Latin America could be charged as criminals.  That’s just wrong!  Talk about controlling women.  And I can see how this sort of climate could cause people to accuss neighbors, relatives, or people that they don’t like of “damaging” a pregnancy.  It is a lot like when neighbors turned on each other during various witch crazes and hysterias that erupt periodically. (the Nazis that you mentioned weren’t after “witches,” but the way they operated followed the same hysterical, “enemies must be rooted out and condemned” dynamic.)


    This is just a sick, sick way of viewing women as potential criminals and as having no real authority over their own bodies (the old “woman as vessel” belief). 

  • crowepps

    Women who have miscarriages can be changed as criminals in the United States as well.  As can those who have stillbirths.



    Note: Gibbs fetus had Downs Syndrome, which results in a high rate of stillbirths.

  • rogue-okie

    I think personhood is a grand idea.  Far from criminalizing abortion, the legal questions it raises leads, no matter how you try to squirm out of it, to the idea that women are people.

    I will never understand why the uterus does not fall under the same laws and protections all other organs fall under. The uterus belongs to the mother. The fetus, human or no, has exactly the same right to it that anyone else has over any other person’s organs. None.

    Other than forbidding the sale of human organs, the law considers them to belong solely to the person they were born with and can not take them from one person and give them to another by force of law, not even if the intended recipient is your own child.

    Sign your organ donor card? If you did not, can the government force you to be an organ donor? What if a child was dying, could you be required by law to be an organ donor? Is there any law that allows for government control of a persons right to choose to be an organ donor? If so, under what conditions? Can you be sued for your organs if another person’s right to life is at stake?  What is meant by the “right to life” anyway?  Can that be interpreted to mean that all humans have a right to life and if so, how do we as a society, go about enforcing that right?



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