Prosecuting pregnancy: Indiana bill would allow pregnant women to be charged with 'possession' of abortion medications
Indiana State Senator Michael Young, R-Indianapolis (pictured above), introduced Senate Bill 0171, which would completely ban the use, possession, and prescription of abortion medications to end a pregnancy. It also prohibits insurance coverage for abortion inducing drugs, and more.
Indiana Code Title 16. Health § 16-18-2-1.6 defines abortion inducing drug as “a medicine, drug, or substance prescribed or dispensed with the intent of terminating a clinically diagnosable pregnancy with the knowledge that the termination will, with reasonable likelihood, cause the death of the fetus. The term includes the off-label use of a drug known to have abortion inducing properties if the drug is prescribed with the intent of causing an abortion.”
SB 0171 contains no health exception, no exception for the life of the pregnant person, and no exception for rape survivors. There is not even an exception for ectopic pregnancy, an extremely dangerous condition in which a fertilized egg implants in an abnormal location.
The twenty-seven-page bill would also strip all mention of abortion inducing drugs from state health codes. SB 0171 is a brutal, scorched earth, absolutist policy without regard for those who would be negatively effected by such a law. (You can read more about this bill here.)
Regarding criminal possession of an abortion inducing drug, SB 0171 contains no exemption from prosecution for pregnant people. Instead, the bill contains an affirmative defense provision.
An affirmative defense allows a defendant charged with a crime to admit to committing that crime, but present a defense to, hopefully, prove to a jury that the defendant shouldn't be held liable for committing the crime because of extenuating circumstances. The defendant arguing an affirmative defense is presumed guilty and has the burden of proof on establishing, in court during trial, that the affirmative defense applies to the circumstances of their crime. SB 0171 states:
“It is a defense to a prosecution for a crime under this section that the abortion inducing drug was possessed by a pregnant woman who intended to use the abortion inducing drug to terminate her pregnancy.”
This means that a pregnant person found in possession of abortion inducing drugs could still be charged with criminal possession. She would then have to prove — while being prosecuted in court — that she possessed the abortion inducing drugs with the intent to terminate her own pregnancy.
The history of discriminatory pregnancy criminalization in the United States shows us that few of those who would be charged with criminal possession of abortion inducing drugs would be able to hire an attorney to mount an effective defense. Rather, SB 0171 would merely extend the racist and classist scope of the government's carceral impulses.