This week, ProPublica released two studies tracing the deaths of two women to Georgia’s six-week abortion ban—the first to be reported since the reversal of Roe v. Wade. Twenty-eight-year-old Amber Thurman took abortion pills but did not completely expel the fetal tissue from her body. She developed a serious infection and went to the hospital, where physicians would ordinarily have performed a dilation and curettage to remove the remaining tissue. In Thurman’s case, however, physicians failed to act for roughly 20 hours. They waited to operate until the situation was dire, and Thurman died.
Candi Miller, a mother of three, suffered from lupus, diabetes, and hypertension, and she was warned that her health was so fragile that she might not survive another pregnancy. When she accidentally became pregnant again, she ordered abortion pills online. Like Thurman, Miller didn’t entirely expel the fetal tissue and developed a serious infection. But Miller did not seek out care. Her family reported that she was aware of Georgia’s criminal abortion law and afraid of what would happen if she sought emergency care. Her husband found her unresponsive in bed, her 3-year-old daughter at her side.
A state medical committee subsequently concluded that Miller’s and Thurman’s deaths had been preventable. And at least in Miller’s case, the committee drew a causal connection between Miller’s death and the state’s abortion ban.
Stories about physicians’ reluctance to provide emergency care to pregnant patients have become common since the Supreme Court reversed Roe v. Wade, both in the media and in court. Perhaps more wrenching still, we have expected to see deaths like Thurman’s and Miller’s, based on what we know about the long history of abortion’s criminalization.
Abortion opponents have already argued that physicians could have legally intervened to save both Miller and Thurman. They might be right. But history makes clear that criminal laws create harm not only because they are too narrow or confusing or contradictory. Criminalization also causes harm because it generates fear, for physicians and patients, and that fear often has more to do with the fate of patients than with what any law actually says.
Reading the details reported by ProPublica is especially heartbreaking for anyone who has studied the history of abortion in America. For much of the nation’s past, most historians understand, abortion was permitted until quickening, the point at which a woman could detect fetal movement. The American Medical Association led a crusade to criminalize abortion in the latter half of the 19th century. Most of these criminal laws included an exception for the life of the patient, and state courts often afforded physicians (but not other providers) discretion when they acted in good faith to protect their patients’ lives and even health. There is considerable evidence that criminal laws didn’t stop abortions in the late 19th century; indeed, the number of procedures seems to have increased. The abortion rate rose again during the Great Depression.
Then came a surge in criminal prosecutions in the 1940s and ’50s, with prosecutors charging physicians even when nothing adverse happened to their patients. To protect themselves from liability, non-Catholic private hospitals often created so-called therapeutic abortion committees to confirm that a given procedure qualified under the “life of the patient” exception.
Convincing a hospital committee in the 1960s was complicated and expensive, and often, only white and relatively wealthy women managed to do it. As the historian Leslie Reagan has shown, the public hospitals on which most lower-income patients and people of color relied often didn’t perform abortions, partly because of the legal risks of running afoul of state criminal laws. And patients themselves had legitimate fears that the criminal law would affect them too—perhaps because a family member would face prosecution, or because they themselves would be forced to testify or even be charged with a crime.
So even as abortion became safer in the ’60s, and as overall rates of maternal morbidity and mortality declined, abortion-related deaths for Black women actually climbed in cities like New York. Women unable to get therapeutic abortions or afraid of criminal repercussions sometimes drank lye or used knitting needles to end their pregnancies. As Elizabeth Stevens wrote in 1966, it seemed to many that criminal laws would be hard to repeal, and some percentage of women who ended their own pregnancies—especially those like Miller or Thurman, who were not white or wealthy—would “continue to face the death penalty.”
None of this convinced those forming an emerging anti-abortion movement of the value of reform. Activists argued that exceptions for the life of the patient were unnecessary because the spread of antibiotics and the availability of cesarean sections had made pregnancy far less dangerous. Perhaps most often, anti-abortion activists insisted that women were menaced not by criminal laws but by abortion itself, which they described as a source of mental illness and physical peril.
To read Candi Miller’s or Amber Thurman’s story is to realize how little has changed. The threat of criminal consequences still makes physicians reluctant to act. Confusion about the law makes people like Miller reluctant to even seek emergency care because they’re afraid they will face criminal consequences too.
If anything, new laws may have amplified these effects. Before Roe, as the historian Alicia Gutierrez-Romine has shown, penalties for providers were sometimes relatively light, at least for white male doctors, and many physicians faced no prison time. Georgia’s law, which does not clearly exempt women from criminal punishment, authorizes a penalty of 10 years in prison; Texas, which does exempt patients, imposes a sentence of up to life in prison. As courts interpret the new criminal laws, physicians often have less discretion—in states like Texas and Oklahoma, state courts have ruled that a physician’s decision must be objectively reasonable, and good faith is not enough.
What hasn’t changed is the impact of the losses of Miller’s and Thurman’s lives. Neither is likely to discourage conservative lawmakers from arguing that criminalization is the best way to honor human life. Some anti-abortion activists are stressing doubt about what caused either woman’s death—arguing, for example, that we can’t know why Thurman’s doctors waited to act. Least surprising of all, many in the movement argue that Thurman and Miller died because we don’t criminalize abortion enough. Their deaths have already become part of a new call for a federal strategy to block access to abortion pills, whether through policy changes at the Food and Drug Administration or through the use of the Comstock Act, a 19th-century obscenity law, in a future Republican administration.
But the history of abortion in the U.S. is also one of resistance to criminal bans. The issue of the state’s power to criminalize abortion or related reproductive services is on the ballot in 10 states. The scope of the federal government’s power to regulate abortion—and the prospect of a ban enacted with or without Congress—is on the ballot too in this year’s presidential race. It seems inevitable that there are more stories like Miller’s and Thurman’s that we have yet to hear, but we still have some say in what comes next.
