The US Supreme Court's abandonment of Roe vs. Wade -- combined with a decision last year by Greg Abbott and the Texas Legislature to re-affirm criminal statutes on abortion from the 1925 Penal Code, if and when Roe ever fell -- suddenly have dumped the abortion question back into the realm of criminal law.
SCOTUS decided Roe v. Wade when I was four years old, so I've never known a world in which the criminal courts managed women's reproductive choices. Thus it's easy to forget that the Wade in Roe v. Wade was Henry Wade, the Dallas County District Attorney,* and that for a century-plus before that, both obtaining and assisting with an abortion were crimes for which people were arrested by police, charged by prosecutors, sentenced by juries, and imprisoned in the same facilities as murderers and thieves.
Statutes banning assisted or intentional miscarriages were on the books in Texas from at least 1854, before being updated to include the word "abortion" in 1907 and then codified into the Penal Code in 1925. Attorney Doug Gladden goes through that statutory history here.
Gladden identified 40 abortion convictions in Texas appellate records: 24 before 1925, 16 of which were reversed, and 16 from 1925 to 1971, of which five were reversed. Some cases may not have been appealed, and records may not be complete, but even so, this tells us abortion statutes weren't frequently enforced.
What they did do was prevent most legitimate, trained doctors from performing them. In Greenville, for example, in 1905, a black doctor was arrested for performing an abortion on an 18-year old girl. In 1907, a physician was prosecuted in Haskell, TX, for performing an abortion on his 13-year old sister-in-law, who had been raped. In El Paso, Dr. Andrea Reum, whose husband was also a medical doctor, was prosecuted after performing an abortion on a young black woman. She was a rich society lady who wore fashionable gowns and diamonds while incarcerated in the county jail.
The earliest case I found reported in Texas newspapers was n 1890 in Comanche, when a medical doctor was arrested for performing an abortion. Charges were later dismissed when the victim refused to testify.
Such episodes were widely publicized in the press and sent a message to physicians that performing abortions would cost them their licenses. In 1919, the Legislature passed HB 235 making that official, requiring license cancellation by the state medical board for any physician found to have given a criminal abortion.
The Amarillo Globe News in 1960 cited local physicians' concerns that the abortion ban forced women to have "do it yourself" abortions, and reported that most women seeking the procedure were married.
Forbidding safe abortions didn't mean women wouldn't pursue unsafe ones, en masse. By the time of Roe v. Wade, the practice had become widespread. According to the Fort Worth Star-Telegram, in 1966 an estimated one million women had criminal abortions, and 8,000 of them died as a result.
By contrast, in 2021, the Guttmacher Institute estimates about 930,000 women had safe, medical abortions, though the US population is much larger than in 1966. So legalizing abortion empirically didn't make their number increase; it only made things safer and less threatening for women and the nurses and physicians brave enough to help them.
If it's true that abortions were more prevalent under a criminal sanctions regime, from a policy perspective, re-criminalizing greatly increases the harm without achieving the desired result.
The other big intersection of criminal law and abortion rights in the wake of the Dobbs opinion arises for women under supervision of the justice system: Either out on bail or on probation or parole. Whether these women will be allowed to leave their jurisdiction to get an abortion will be decided on a judge-by-judge basis: Some will routinely allow it; some never will. This will create a patchwork of policies as well as massive incentive for defendants to lie to the courts and abscond.
Presently, because this hasn't been an issue the criminal-justice system dealt with in more than a half century, there's no criminal-justice reform group obviously well-situated to confront these questions. The ACLU will step up, one assumes, but they're being pulled in a million directions and don't have a winning track record on these topics. Meanwhile, abortion-rights groups who one would anticipate would be most aggressive haven't dealt with the justice system in a half century and will have a steep learning curve. Grits fears that neither the abortion rights movement nor the #cjreform movement are well-positioned to confront what's coming next.
MORE: A slightly expanded/edited version of this post was published in The Texas Observer.
* An earlier version of this blog post said Henry Wade was Harris County DA. He was DA in Dallas County. I regret the error.