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The debate over jailing women for abortions

Jerry Adler
Senior Editor
Photo illustration: Yahoo News; photos: Mark Peterson/Corbis Documentary/Getty Image, Instants/Getty Images

Rigorous intellectual consistency has not been a hallmark of Donald Trump’s career in public life, but on at least one notable occasion, he pursued an argument to its logical conclusion. Unsurprisingly, it turned out badly.

That was during the 2016 presidential campaign, when pressed by MSNBC’s Chris Matthews to elaborate on his ardent, if comparatively recent, opposition to abortion, he agreed that “there has to be some form of punishment” for women who have one.

Instantly, the guardians of conservative orthodoxy descended to inform him of his error: Women are actually the “victims” of abortion, as well as a much more numerous voting bloc than abortion providers, who are the real villains. Within hours, his campaign had issued a recantation. But the idea lived on, and even seems to be gaining support in some quarters of the antiabortion movement.

In fact, the idea of prosecuting women for abortions has been kicking around on the fringes of the antiabortion movement for some time.  Back in 2014, conservative provocateur Kevin Williamson recommended (in a tweet and a podcast) execution, preferably by hanging, as the appropriate punishment. When those remarks surfaced last week, they cost Williamson, formerly with National Review, a plum job as a columnist for the Atlantic, whose editor found them “contrary to The Atlantic’s tradition of respectful, well-reasoned debate, and to the values of our workplace.”

Williamson’s fate fueled a spirited debate over the suppression of conservative views in the mainstream media that played out all up and down the Acela corridor. But meanwhile, far from the living rooms of Georgetown and Park Slope, an Idaho lawmaker and candidate for lieutenant governor, Republican Bob Nonini, endorsed legislation that would make abortion a capital crime, for both providers and the women who have the procedure. “There should be no abortion, and anyone who has an abortion should pay,” Nonini said at a candidate forum — before partially retracting, or at least obfuscating, his position, with the observation that “for practical reasons, as well as for reasons of compassion,” women as a rule haven’t been prosecuted, even in the years when abortion was illegal.

Idaho seems to be a hotbed of this kind of thinking; last year, another legislator, state Sen. Dan Foreman, introduced a bill to classify abortion as first-degree murder, on the part of both the woman and the provider. Foreman’s bill, which did not advance, made an exception to save the mother’s life, a compromise that some Republicans in the Ohio legislature obviously consider a sign of weakness: They are backing a bill to prosecute women who obtain an abortion even to save their own lives.

Politically, a platform of arresting women for homicide — there were around 20,000 abortions in Ohio in 2016 — could easily backfire on the GOP if executions were to start. As a legal strategy, it is part of the antiabortion movement’s broader effort to find a case that can give the Supreme Court an excuse to revisit, and hopefully overturn, its ruling in Roe v. Wade. But as a matter of principle, Williamson is far from alone in believing that women who seek an abortion are just as culpable as the physicians who perform the procedure. In fact, it is the only logical position to hold, in light of the movement’s endlessly repeated mantra that abortion is murder: Treat her as you would a woman who pays a hit man to kill her husband.

That was just the point Justice Blackmun made in his opinion in Roe, writing (in a footnote): “When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. … If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion … is significantly less than the maximum penalty for murder. If the fetus is a person, may the penalties be different?”

Maintaining that precise distinction has been the work of the mainstream antiabortion movement ever since. In response to Foreman’s bill, the Idaho chapter of Right to Life hurried to reassure the public that it “does not support any legislative action that would subject women to criminal penalties for an abortion.

“[W]e are convinced that abortion is most often a tragically desperate act,” the statement continued. “Available research indicates that coercion is often a factor in over 64% of the cases when women experience abortion. Despite rhetoric from advocates of abortion on demand, abortion is most often NOT freely chosen by women.”

Even taking this at face value, that leaves more than a third of women who did freely choose abortion. Should they get off scot-free? You could, if that’s your concern, pass a law making abortion a crime and specifically allow coercion as a defense. All in favor, say aye.

A different group, Abolish Abortion Idaho, which supported Foreman’s bill to criminalize abortion, has a more straightforward take on it: “[P]ro-life organizations like Right to Life of Idaho have never understood that they undermine their position by treating abortion as something less than what it is — murder. … The actual historical pro-life position, in contradiction to Right to Life of Idaho’s claim, is found in one of the oldest and most well supported documents on the planet, the Bible. In Genesis 9:6, we find this:

“‘Whoso sheddeth man’s blood, by man shall his blood be shed: for in the image of God made he man.’”

Well, that’s clear enough. As Nonini, the Idaho candidate for lieutenant governor, claimed, “In the history of the United States, long before Roe was foisted upon this country, no woman has ever been prosecuted for undergoing abortion.” That happens not to be true: It has happened many times, as a rule when women attempt to self-induce abortions, typically because they can’t find or afford a clinic to perform the procedure. And it is happening right now in a number of other countries, including El Salvador, where a woman was recently freed from prison after serving nearly 11 years for an abortion. The judges decided that, as she’d said all along, she had actually suffered a miscarriage.

Luckily for her, she wasn’t hanged. But some people would like to see that changed.

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