JAILED for ending pregnancy: How prosecutors get inventive on abortion.

In late March, Donald Trump sat down for a town hall-style interview with Chris Matthews. The candidate at the time was still crisscrossing himself on abortion rights – should Planned Parenthood be defunded? Was Roe v Wade settled law? – and Matthews made several attempts to pin him down.

“If you say abortion is a crime or abortion is murder, you have to deal with it under law,” Matthews said. “Should abortion be punished?… Do you believe in punishment for abortion, yes or no, as a principle?”

After several dodges, Trump replied: “The answer is that there has to be some form of punishment.”

The denunciations came almost as fast as Trump’s retraction. Later in the day, Trump issued a statement saying that a woman should never be punished for an abortion – only her doctor. But before he could reverse himself, a cry went up almost in unison from reproductive rights activists: some women are already being punished for having abortions.

Nearly 44 years after the supreme court ruled that women in the United States have a right to a legal abortion, self-induced abortions are still a significant phenomenon. As the Guardian reported on Monday, every year, there are potentially thousands of women in the US who attempt to end their pregnancies by themselves. Some even succeed.

Unwittingly or not, these women are operating in murky legal territory. Only seven states have some law that makes it explicitly illegal for a woman to attempt her own abortion, and in most states and at the federal level, the law says nothing at all. But that hasn’t stopped individual prosecutors from going after women who self-induce abortions, or try.

All told, in the United States, a woman who attempts to induce her own abortion may potentially be running afoul of any one of 40 different laws – including those against child abuse, or drug possession, or practicing medicine without a license – according to the Self-Induced Abortion (SIA) Legal Team, a project associated with Berkeley Law. And this is not settled law. Several times, after a woman has been jailed and prosecuted, a court has ruled that the law under which she was charged didn’t apply to women who attempt their own abortions.

Last year, Georgia prosecutors attempted to charge Kenlissa Jones with attempted murder after authorities claimed that Jones used abortion drugs to self-induce a miscarriage. Arkansas prosecutors charged a 37-year-old named Anne Bynum for allegedly using the same pills. The best-known of these cases even unfolded in Vice-President-elect Mike Pence’s backyard: Purvi Patel, an Indiana woman, apparently used abortion drugs she had obtained over the internet to try to end her pregnancy in its second trimester. Patel was sentenced to 20 years in prison until an appeals court reduced her sentence. A push for Pence, who later became governor of Indiana, to clarify whether a state law allowed Patel’s prosecution fell on deaf ears.

In several instances, law enforcement agencies have charged women under laws ostensibly enacted to protect women. In December 2013, Jennifer Whalen, a Pennsylvania woman, was charged with offering medical advice about abortion without being medically licensed after she ordered an abortion drug online for her pregnant daughter. Thirty-seven states have similar laws requiring abortion drugs to be administered by a licensed physician.

It’s very much on individual prosecutors to make these decisions, said Lynn Paltrow, the head of the National Advocates for Pregnant Women (NAPW), which has intervened in some of these cases on behalf of the women charged. “It does not seem like the National Right to Life or some other group was encouraging these prosecutions. In many of these cases, hospital staff or local police are outraged and want to find a way to respond.”

Laurie Bertram Roberts, the head of the Mississippi Reproductive Freedom Fund, recently encountered a woman whose friend had sent herself to the hospital four times by drinking a home abortion cocktail of turpentine and sugar. During her most recent hospitalization, doctors threatened to call the police if she tried this again, Roberts said. “When we zoom out on this trend, I do think that there are a number of things going on. Hospital workers or social workers may be horrified and feel personally obligated,” said Jeanne Flavin, a researcher with NAPW.

Because these decisions are made on such a local level, a Trump presidency will not necessarily result in an explosion of prosecutions. But some predicted it could represent an expansion of the restrictions that cause women to take matters into their own hands in the first place. “That is something that one could reasonably predict in an environment where abortion becomes even illegal, or even more inaccessible than it has been,” said Yamani Hernandez, the executive director of the National Network of Abortion Funds.

Trump has promised to appoint “pro-life” judges to the supreme court with a potential view toward overturning Roe v Wade, the supreme court decision that established a right to abortion. In an interview shortly after he won the presidency, Trump acknowledged that if Roe v Wade were struck down, some states would ban abortion. If the history of abortion before Roe is any guide, thousands of women would travel across state lines to obtain an abortion every year. But many more women would seek out illegal providers or take matters into their own hands.

On 12 November, a Tennessee grand jury indicted Anna Yocca on three felony charges that included aggravated assault and attempted abortion. The charges traced back to one day in 2015, when Yocca climbed into a bathtub and inserted an unravelled wire hanger into her womb. She began to bleed excessively. Her boyfriend rushed her to a hospital, where she gave birth to a premature infant. The infant survived – according to the prosecution, he was “forever harmed” – and was adopted by another family. Police placed Yocca under arrest and charged her, initially, with attempted murder.

What do the most harrowing of these cases have to do with ordinary women – or even, for that matter, those who quietly and successfully terminate their own pregnancies without any physical tells? These cases, after all, represent just a small fraction of women who attempt to induce their own abortions. “We could just be seeing the tip of the iceberg if actually, a lot of women are successful in inducing abortions on their own,” said Daniel Grossman, a clinical professor of OB-GYN at the University of California–San Francisco who researches self-induced abortion. One of his studies found evidence that potentially 100,000 women in Texas have at some point in their lives attempted to self-induce an abortion.

By contrast, the SIA Legal Team has counted 17 women who have been arrested or convicted in relation to an attempt to induce their own abortions in previous decades. NAPW has identified about two dozen cases since 1973, the year the supreme court ruled in Roe v Wade.

​But experts say this handful of cases has an effect on all women by dragging reproductive decisions out of the realm of healthcare and into the realm of law and justice. “Prosecutions for self-induced abortion are an abuse of the criminal justice system,” said Jill Adams, the chief strategist of the SIA Legal Team. “Once a woman has decided to end a pregnancy, she should be able to do so safely and effectively. Women who self-administer abortion need to be supported, not seized. Abortion, whether self-directed or provider-directed, is a private experience.”

Yocca’s attorney, in a court filing, agreed, saying her prosecution “makes every pregnant woman vulnerable to arrest and prosecution if she is perceived to have caused or even risked harm to a human embryo or fetus … and that the prosecution is absurd, illogical, and unconstitutional”.

Once law enforcement is in the habit of prosecuting women for abortions, Paltrow, the NAPW director, argues, it is not a stretch for them to police any behaviors that could conceivably endanger a fetus. Women have been charged with attempted abortion for attempting suicide or for injuring themselves unintentionally in a car crash. Follow the logic, Paltrow said, and you can charge a woman over any conduct she could conceivably have known would endanger her pregnancy. In October 2015, New York’s high court vacated the manslaughter conviction of Jennifer Jorgensen. She had been charged after she was in a car accident (she was not wearing a seatbelt), which caused her to have a miscarriage.

In fact, women have been charged with endangerment of a fetus hundreds of times in the past few decades.

“We have gone and created a unique, gender-based crime, where the action actually requires a pregnancy to be a crime,” said Paltrow. “You’ve created a separate and unequal law. And people don’t understand that in a country that has so expanded its criminal laws, any prosecutor intent on punishing anybody can find a crime.”