In March, when Georgia police arrested a 31-year-old mother, alleged that she’d had an abortion, and charged her with murder, the woman’s mugshot circulated far faster than the facts did. An officer with the Kingsland police claimed that in December, they had been “alerted to suspicious circumstances involving a pregnant female patient” by a hospital security guard. At the time, according to a police report reviewed by The New Republic, the police seized a pill bottle containing misoprostol, an FDA-approved medication that one officer mischaracterized as a “narcotic.” Months later, officers arrested Alexia Moore, who sat in jail for more than two weeks while local news told her story using sources that were almost exclusively from law enforcement. A separate police report asserted that “medical staff” had “knowledge that the baby had a beating heart and was struggling to breathe,” and alleged that Moore, by “her own verbal admission,” intended to end her pregnancy.
But as Moore’s mother told a reporter, this was merely the word of one officer versus her daughter’s. The focus has been on what Moore allegedly said and did, and whether she violated Georgia’s abortion ban, while the conduct of the police, as documented by the police themselves, has gone comparatively unscrutinized. Why were they going after this woman in the first place? Could the charges they brought against her, of malice murder and possession of a dangerous drug, even apply? Georgia’s feticide statute excludes “any woman with respect to her unborn child,” and Georgia courts have held that the state’s controlled substances law cannot be applied to a fetus. Even should their case against Moore fall apart, should must we expect more such arrests, as more and more people in Georgia self-manage their abortions, and more do so later in pregnancy?
As the story spread, it understandably caused fear. It also spread stigma and misinformation. And along the way, something quite fundamental has been lost: Whether or not the Georgia abortion ban was violated in this case, the ban is certainly to blame for it. When a ban makes abortion nearly impossible to obtain lawfully, pregnant people exercising control over ending their own pregnancies are made potential criminals by a state that is determined to control them. This is due to the law—but not only the law.
Commonly referred to as the Georgia six-week-abortion ban or “heartbeat” ban, the state’s Living Infants Fairness and Equality Act goes much further. The LIFE Act stipulates that an “unborn child” becomes a legal person within weeks of conception, and then elaborates that “no abortion is authorized or shall be performed” on an “unborn child,” so defined. “The ban is a fetal personhood ban,” said Karen Thomspon, legal director at Pregnancy Justice, an organization defending the rights of pregnant people against pregnancy criminalization. To grant a fetus legal rights, she said, is to say that “the state has more interest in the fetus than in the pregnant person.” The case against Moore does concern the state’s abortion ban, but it’s this element of the law—the idea that an embryo or fetus is a legal person, a fiction invented to ban abortion—that police may have had in mind as justification for their charges against her.
Fetal personhood laws and abortion bans are often intertwined. But the direct harm caused by the abortion bans have typically overshadowed the more abstract and punitive laws defining fetal personhood. According to Pregnancy Justice, at least 24 states have anti-abortion laws with language related to “fetal rights,” as Georgia does, and 17 establish “fetal rights” in a host of other laws or judicial decisions. Such laws may not mention abortion at all. But fetal personhood laws are layered onto existing laws and emerging legal trends, such as the attempt by anti-abortion legislators to classify misoprostol and mifepristone, the two drugs used in medication abortion, as dangerous drugs or controlled substances.
Louisiana has legally classified those medications as controlled substances, and other state legislatures are considering similar laws, but to date, Georgia has not passed such a law. Ultimately, however, a state may be able to achieve the same effect without going to the same lengths as Louisiana. In Moore’s case, one responding officer described the misoprostol pills they allegedly seized as a drug that “can be used to have an unlawful abortion,” as if you can determine the lawfulness of an abortion based on possession of pills. He was doing what anti-abortion activists have been doing for years: associating the medication with a crime. The point is to cast people who use the pills as criminals and to cast doubt on the safety of the pills. “You’re going to be afraid to order the pills,” Thompson said, “or your friends are going to be afraid to give you the pills, or the doctor might be afraid to give you the pills.” The very fear and stigma around medication abortion being dangerous will serve to dissuade its use. So will the vaguely defined notion of “fetal personhood,” when it’s used to subject someone who self-managed an abortion to the possibility of life in prison with a malice murder charge. “You don’t have to make abortion illegal,” Thompson emphasized. “You just make it so untenable, or so dangerous, or so carceral,” that it becomes an impossible risk to take.
These are not just legal or rhetorical strategies; they also shape how patients make health care decisions. Police claimed, for example, that a hospital security worker summoned them after the worker suspected Moore of taking misoprostol. If you think going to the hospital can get you arrested, Thompson said, “you’re not going to go to the hospital.” Such arrests only further isolate pregnant people from health care and other resources. You may hear about them and think you are on your own, because you don’t know whether a healthcare provider will serve as an extension of the police.
Patients’ fears are not unfounded. In dozens of documented cases between 2000 and 2020 in which someone was criminally investigated or arrested for allegedly ending their own pregnancy or helping someone to do so, If/When/How found, the most common way a case came to the attention of law enforcement was through healthcare providers: nearly 40 percent. More than half involved medication abortion, and the vast majority of cases involved a pregnancy in the second or third trimester.
While mifepristone has been approved by the Food and Drug Administration, with current guidelines for use with misoprostol up to 10 weeks, as Guttmacher reports, the drug “is also used safely off-label later in pregnancy.” Outside the United States, health care organizations recommend medication abortion later into pregnancy: the World Health Organization says medication abortion can be safely self-managed up 12 weeks; IPAS has published guidelines for use after 13 weeks; and Médecins Sans Frontières in collaboration with HowToUseAbortionPill.org have published a curriculum on medication abortion between 13 and 22 weeks. Self-managing abortion with medication later in pregnancy is “safe, it’s effective, and it’s more common than people think,” said Bonyen Lee-Gilmore of Patient Forward, a national advocacy and strategy organization focused on barriers people face seeking abortion later in pregnancy. “But it also comes with a greater risk of criminalization.”
This is the case in part because a patient self-managing a later abortion with medication may be more likely to seek out medical care. “When you need medical care, that invites scrutiny, because healthcare workers are one of the most common groups to report pregnant people to the police,” Lee-Gilmore explained. The drive to expand abortion access with pills has also unintentionally exposed some patients to possible criminalization. “There has been a movement-wide investment in abortion pills,” Lee-Gilmore said. But we still need measures, she said, that “actually prepare people for what [self-managed abortion] later into pregnancy looks like, feels like, and can become.”
It is likely that with both the push for fetal personhood and against medication abortion, we will see more cases like this recent one in Georgia. This isn’t so much a consequence of Dobbs or of any particular abortion ban, but of multiple anti-abortion strategies long in play now converging, fueling police and prosecutors’ confidence in making these types of arrests and bringing these types of cases. There’s a “casualness” to exposing a pregnant person’s life, as Moore’s has been, Thompson said, “blasting their faces in mugshots all across the world, for things that are really at their core poor lawyering and misogyny.” At bottom, the state has an interest in controlling women, punishing them for being pregnant the wrong way, or punishing the wrong women for being pregnant. “We are going to continue to fight to make sure that people are getting the care they need,” Thompson said. “That care is just not in the courts.”
A judge has released Alexia Moore on bond—$2000 for the drug charge, $1 for the murder charge. The token amount may be a tangible indicator of how weak the murder case is. (The Dougherty County district attorney, Keith Higgins, who is the prosecutor in Moore’s case, did not respond to a request for comment; a spokesperson for Georgia Public Defenders Council, which is representing Moore, stated that they would not be commenting further.) Nevertheless, the drug prosecution may advance. Both charges should be condemned as part of the same larger project. “As long as ‘fetal personhood’ exists,” Lee-Gilmore said, “there is a tension between who the government must protect, who gets to decide what happens to that pregnancy, who gets to make the health care decisions.” If the state drops the charges, the police will face no consequences for their needless investigation. Moore alone will bear the burden.
