Beyond Hysteria: Prosecuting Women for Abortion Is More Likely Now Than Before Roe

Abstract

When Dobbs v. Jackson Women’s Health first overturned long-standing precedent protecting a woman\u27s fundamental right to abortion, pro-choice leaders issued warnings about the possibility of prosecuting women for abortions. These concerns were dismissed as hysterical or as political theatrics because, in the past, women were rarely prosecuted for their own abortions. This note analyzes the history of illegal abortion before the Supreme Court’s ruling in Roe v. Wade to demonstrate that women were targeted, used as leverage against abortion providers, and sometimes arrested for their roles in the procedure. Further, this note argues that nationwide panic over gender roles, increasing politicization around abortion, and the use of other criminal statutes to punish women show that this new era of illegal abortion could mean harsher penalties for women, including not only fines or jail time, but also public humiliation and vitriol. The concerns around prosecuting women are more than just hysteria—they are justified by history and emerging, nationwide trends