Tipsheet

Could Women Be Arrested for Having an 'Unlawful' Abortion?

Mia Cathell
Mia Cathell  |  October 21, 2022 11:15 AM

Rep. Eric Swalwell, who lusts for Chinese spies and struggles with public flatulence, paid for a pro-abortion ad that depicts a woman under arrest at family dinner for having an "unlawful" abortion. The skit is meant to alarm voters about what could purportedly happen if GOP legislators continue banning the baby-killing procedure. One would think this a hyperbolic scenario, but Swalwell will have you believe it's a possible outcome. So, could women actually get arrested for having illegal abortions?

CLAIM: This week, Swalwell's advertisement, titled "#LockHerUp," was released Monday across social media platforms as desperate Democratic candidates are sinking their claws into the constituents ahead of the looming November midterm elections.

The minute-and-a-half video portrays a young family having dinner when a pair of police officers show up at the residence and tells the mother in the house's doorway that she is being arrested for unlawful termination of a pregnancy. At first, the woman replies, "That is my personal business," but one of the cops answers, "That's for the courts to decide, ma'am." He then informs the mother that her medical records have been subpoenaed and her presumed abortion provider is already in custody.

"You will have to submit to a physical examination," the officer states. A close-up shot captures the horror on the woman's face. "No one's touching my wife!" her husband shouts, approaching the cops. Both officers pull out handguns and aim the firearms at the couple. Their daughter cups her hands over her ears while their infant son—still at the dining table—cries in his high chair.

The mother is placed in handcuffs in front of her sobbing children. "Why is this happening?" the little girl questions. "I love you, honey bear," her mother replies before she's escorted away. "We're just enforcing the law here," an officer tells the family.

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"Elections have consequences," a voiceover narrates text in the video's conclusion. "Vote Democrat on November 8th. Stop Republicans from criminalizing abortion everywhere. Protect women's rights and freedom." The last scene shows the teary-eyed woman in the back of the police's patrol car en route to jail, pleading to the camera: "Please, don't do this. Please."

"MAGA Republicans want women arrested for having an abortion. This is what that looks like," Swalwell tweeted Monday, uploading the video. In another tweet, Swalwell wrote: "I wish we lived in a world where a scene like this is hyperbole."

Swalwell said it's not an "exaggeration." The "truth," according to Swalwell, is that it's "exactly what will happen if we allow the MAGA Republicans to hijack women's health in America. We cannot let that happen. #VoteBlueIn22 #Roevember."

The progressive California congressman debuted the political ad on MSNBC's "The ReidOut," declaring on-air that this will be the "new reality in MAGA America" if Republicans win big next month, turning Congress into "a MAGA-controlled House and Senate."

FACTS: No current state law would imprison a woman for having an abortion. Depending on the state, only doctors who perform abortions would face criminal charges or lose their medical licenses if found in violation of legislation that enforces restrictions. None of the states that have total bans on abortion explicitly stipulate punishments for pregnant mothers seeking abortions.

As for self-induced abortions, in one story that sparked national scrutiny, a woman in Texas was arrested and accused of performing an "illegal" abortion on herself, but the district attorney dropped the charges. A representative with the local sheriff's office told KVEO-TV that 26-year-old Lizelle Herrera "did intentionally and knowingly cause the death of an individual by self-induced abortion." (It was not immediately known how far along Herrera was in her pregnancy.) Herrera was held on $500,000 bond in Rio Grand City, near the Mexico border, after being reported by a nearby hospital. Then top prosecutor Gocha Allen Ramirez announced that his office contacted Herrera's legal counsel and explained that they'd file a motion to dismiss.

"In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her," the district attorney wrote, determining "it is clear that the Starr County Sheriff's Department did their duty in investigating the incident brought to their attention by the reporting hospital. To ignore this incident would have been a dereliction of their duty." However, "prosecutorial discretion rests with the District Attorney's office," Ramirez countered, asserting that it would be against his "oath...to do justice" by proceeding to prosecute Herrera and instead he chose to "immediately" dismiss the indictment.

Legal scholar O. Carter Snead wrote in an article for the Economist: "Prosecutors who have used 'feticide laws' to charge women for self-induced abortion have been corrected by courts for exceeding the authority of those statutes." He explained that there is no documented case in America of a woman being prosecuted for seeking an abortion since the year 1922. There has been only one instance of a woman being convicted for unlawful self-management of abortion, he said, and that was vacated on appeal. 

"All modern abortion laws immunise the woman seeking abortion from liability. Aside from a handful of highly publicised comments by stray state legislators, the suggestion that women should be prosecuted in a post-Roe world has been roundly criticised and rejected by pro-life leaders and elected officials alike, and has no realistic chance of becoming law," Snead said.

A proposal in Louisiana that considered subjecting abortion-procuring women to criminal prosecution was swiftly rejected by pro-life state representatives and the governor, whose side garnered support from prominent local and national right-to-life advocates.

Swalwell's rhetoric was not well received and advocates for unborn life have since expressed that criminalizing women is not a widely shared goal in the pro-life movement. "Punishing women is not, nor has it ever been, a mainstream pro-life position," Susan B. Anthony Pro-Life America state policy director Katie Glenn told Catholic News Agency. "We want to help women, we want to support them, we want to give them better options. We certainly don’t think that criminalizing them is justice."

In mid-May, over 70 pro-life leaders, including the head of the U.S. bishops' pro-life committee, demanded in a joint letter that lawmakers refuse to punish or criminalize women who obtain abortions. "As national and state pro-life organizations, representing tens of millions of pro-life men, women, and children across the country, let us be clear: We state unequivocally that any measure seeking to criminalize or punish women is not pro-life and we stand firmly opposed to such efforts," reads the May 12 letter.

Many pro-lifers see the women as victims and that with every abortion, there are two victims: both the mother and her unborn child. "Women are victims of abortion and require our compassion and support as well as ready access to counseling and social services in the days, weeks, months, and years following an abortion. The mother who aborts her child is also Roe's victim She is the victim of a callous industry created to take lives; an industry that claims to provide for 'women’s health,' but denies the reality that far too many American women suffer devastating physical and psychological damage following abortion," the letter says.

The letter urges that "we must ensure that the laws we advance to protect unborn children do not harm their mothers," reiterating that "turning women who have abortions into criminals is not the way." Numerous pro-life organizations, such as  Project Rachel, Rachel's Vineyard, and Silence No More Awareness Campaign, offer a pathway towards healing for women harmed by abortion.

Many states are merciful, too, when it comes to extreme cases. Pro-abortion research organization Guttmacher Institute tracks bans on abortions throughout pregnancy and lists, as of Oct. 6, which states make exceptions for rape, incest, and viability.

Access to abortion has remained a battle Democratic leadership has prioritized since the overturning of Roe v. Wade, although a poll released Monday found that only 5% of likely voters believe abortion is the most important issue facing the country.


Meanwhile, more than a dozen of GOP-led jurisdictions have moved to ban or restrict abortion through "trigger" laws and state legislatures. Aside from criminal penalty, the pro-life laws are designed to protect the life of the mother. Of the 13 pro-life measures that were triggered by the Dobbs decision, every state law allowed abortion if a woman's life is in danger.

Let's look back at the theatrical pro-abortion script financed by Swalwell's campaign. Police arresting Americans at gunpoint over abortion does sound familiar. In fact, it happened in real life—but to pro-life activists who were part of a peaceful protest outside of a Tennessee abortion clinic 19 months ago but are now facing up to 11 years in prison over alleged federal offenses.

Townhall exclusively reported on the early morning FBI raid on Personhood Tennessee president Paul Vaughn's home in early October. Vaughn, who was among the pro-life leaders indicted by the Biden administration's Department of Justice, told Townhall that armed FBI agents with "guns drawn" arrested the father of 11 in front of his young children just before school pick-up.

"The FBI is here, and they are arresting Daddy," one of Vaughn's kids cried during the heavy-handed arrest.

RATING: The claim that women could be arrested for having an "unlawful" abortion is FALSE. Swalwell's commercial is not a realistic depiction of a pro-life America that cracks down on abortions everywhere. It's a pro-abortion fear-mongering campaign that fails to look at legal precedent and contemporary cases. On the contrary, pro-lifers are being prosecuted over abortion.