It might seem too early, as many of those who support the Alito draft opinion that would overrule Roe and Casey, needless to affirm the Mississippi law as falling within the permissible restrictions that do not unduly burden a penumbral right, would argue. After all, we’re told, this isn’t the end of abortion, but the return to where the decision ought to be made, state legislatures. It probably won’t change much of anything, it’s argued, so why get all crazy about it?
Of course, Louisiana voted out of committee this week a law making all abortions murder.
Section 2. Acknowledging the sanctity of innocent human life, created in the image of God, which should be equally protected from fertilization to natural death, the legislature hereby declares that the purpose of this Act is to:
(1) Fully recognize the human personhood of an unborn child at all stages of development prior to birth from the moment of fertilization.
They even got the “image of God” in there, because if you’re going to go all theocracy, why not? But the point isn’t whether life begins at fertilization, despite the issues such an assertion raises, but that the loss of fetal life is murder. Drugs? Alcohol? Accidental? Intentional? Natural? Ectopic? Life of mother? Would this be some variation on self-defense to murder charges? Who knows, as we’ve just stumbled into completely uncharted waters. But Louisiana makes it hard for the talking points to claim it’s not going to be a big deal. Murder is a big deal.
In 2007 the conservative magazine National Review hosted an online symposium in response to a column by Anna Quindlen in Newsweek titled “How Much Jail Time for Women Who Have Abortions?” She argued that anti-abortion activists were dodging the reality that overturning Roe v. Wade would bring. If abortion became a crime in the United States, she wrote, those attempting to enforce such a law would have only two choices: “Hold women accountable for a criminal act by sending them to prison, or refuse to criminalize the act in the first place. If you can’t countenance the first,” she wrote, “you have to accept the second. You can’t have it both ways.”
Her point was that if you’re calling abortion murder, then if the law changes, you’re going to have to treat those who get abortions as murderers. Were people prepared to do so?
The reactions to Quindlen’s question were non-responsive, but if the decision yet to come from the Supreme Court reaches as far as the draft suggests it will, dodging or deflecting this question isn’t going to work. If abortion is murder, then what becomes of the murderer? Will there be a new series of murder crimes relative to abortion, with degrees based on the method or length of pregnancy? How do we square one state protecting, even facilitating, women having abortions when their next door neighbor would impose life without parole? Some of you will just pretend this won’t happen, or you won’t care about the dissonance.
But have no doubt that the people who oppose abortion will, in fact, be dictating abortion policy in dozens of states — and their policies will naturally mirror the statements they’ve been making for 50 years, calling abortion murder, and thus, people who have abortions should be punished as murderers. No matter how much commentators like The Wall Street Journal’s Peggy Noonan warn them, “Do not, as large dumb misogynists, start waxing on about how if a woman gets an illegal abortion she can be jailed.”
Are you loud and proud in your support of saving millions of babies by banning abortion? Okay, but understand that you are the minority and America doesn’t agree.
The problem is that these beliefs, including sending women to prison for having abortions, aren’t palatable to the broader public. Many Americans oppose some abortions, but very few oppose all abortions. A majority want abortions available during the first trimester and in cases of rape and incest. As National Review’s editors argued in 2015, while favoring abortion bans with zero exceptions “is a defensible position,” “it is a highly unpopular one.” Best, they argued, not to discuss it. Besides, the editors continued, “perhaps in a post-Roe v. Wade America a state or two would ban abortion even in cases of rape, and those seeking such abortions would have to cross state lines. But even that is on the far edge of possibility.”
This isn’t an argument and your excuses notwithstanding, it’s time to face the cold hard question already raised. So what do you plan to do about women who “murder”?
And now here we are. The questions that were so easily waved away by some abortion opponents before will need to be answered. If abortion is to be penalized as a felony in some states and an increasing number of women are performing abortions themselves using drugs delivered by mail, would those women be punished? If so, how? For how long?
Will it matter if your “murder” is committed the next day by pill? Will it matter that “fertilization” was the result of rape or incest? Will it matter that the murder involved an ectopic pregnancy that would never have resulted in a live birth, but was likely to result in a woman’s death? If it’s murder, how do you accommodate these questions? And even if it’s just your ordinary, run of the mill pregnancy that’s terminated as soon as the woman realizes she’s pregnant (forget about the issues of availability and cost), does she get life in prison? Does she get what a murderer gets, because she is, as you contend, a murderer.
And if your answer is yes, she’s a murderer and deserves to get life in prison, America disagrees.
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