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Will states prosecute women who seek abortions?

Now that Roe is overturned, lawmakers need to get their stories straight.

People celebrate outside the Supreme Court, Friday, June 24, 2022, in Washington. The Supreme Court has ended constitutional protections for abortion that had been in place nearly 50 years, a decision by its conservative majority to overturn the court's landmark abortion cases. (AP Photo/Jacquelyn Martin)

(RNS) — At the heart of the anti-abortion movement now lies a complex, contested debate: If the procedure is criminalized, should women who have abortions be punished?

As long as Roe v. Wade and Planned Parenthood v. Casey kept abortion legal in the United States with few exceptions, the question was largely hypothetical. But the question of punishment is suddenly a very live one and perhaps the most salient issue for lawmakers left to decide abortion policy in their states.

Pro-life movement leaders have spoken out against punishing women, but recently proposed and enacted laws across many states make women explicitly or implicitly vulnerable to criminal prosecution once their pregnancies go beyond certain gestational ages or developmental milestones.

In addition, protesters outside clinics and courthouses still hold up signs declaring ABORTION IS MURDER. Even if the pro-life movement’s messaging portrays women as victims of a predatory industry, if abortion is premeditated murder, or even just a kind of killing, then whoever consents to the procedure must have some legal responsibility.

Social conservatives have secured the legal victory of their lifetimes. It’s time they get their story straight.

On one side, we have politicians and people with normal moral — and political — intuition. Republican state legislators mostly fall into this category. They may not be eager to punish constituents (or wives or daughters) for a procedure that was legal for decades. And they may not have thought as deeply about the question as theologians, ethicists or pro-life interest groups.

Hard-right anti-abortion advocates Jason Jones and John Zmirak acknowledge the movement’s inconsistency and incoherence in wishing to punish doctors but not women. Writing earlier this year on The Stream, they said the law should treat women who have abortions the way it treats failed suicide attempts, proposing “the real deterrent of a short but mandatory psychiatric custody, and mandated counseling.”

Donald Trump, campaigning for the Republican presidential nomination, made headlines in March 2016 when he told journalist Chris Matthews that “there has to be some form of punishment” for women who have illegal abortions.

But Trump was just beginning to understand the pro-life world after being pro-choice his entire life. Declining to tell Maureen Dowd how many abortions he had paid for, Trump put out a statement hours later clarifying that “the doctor or any other person performing this illegal act on a woman would be held legally responsible, not the woman.”

He added, “The woman is a victim in this case, as is the life in her womb.”

Honest pro-lifers default to the logic of punishment for crime, though it often makes waves, as when journalist Kevin Williamson was fired from The Atlantic within days of his hire after colleagues and readers became outraged over his view, expressed publicly, that abortion “should be treated like any other homicide.” He suggested hanging should be the preferred method of execution. (Williamson considerably walked back his previous statements in a subsequent Washington Post op-ed.)

On the other side, we have the institutional pro-life movement. The leading organizations’ messaging has softened in recent years to what University of California-Davis law professor Mary Ziegler called “a more woman protective strategy.”

But I suspect this is more a public-relations move than a serious moral posture. The kinder, gentler pro-life take does not comport with what they actually believe about abortion, either as a matter of faith or law.

In Catholicism, abortion carries with it a penalty of automatic excommunication. Procuring an abortion is not just a grievous mortal sin, but a crime in canon law. Before 2016, when Pope Francis unilaterally granted parish priests authority to absolve the sin of abortion, in many dioceses a bishop had to lift the penalty of excommunication before a woman could confess.

It’s doubtful that advocates who believe abortion is such a grave spiritual matter would consider a woman’s culpability in civil or criminal law nonexistent.

Rhetorically, the happy-warrior ladies of Big Pro-Life struggle with messaging all the time. While they consistently stick to talking points about not punishing women, they often cannot resist saying what they really think about women who abort.

Just this week The Washington Post ran an article about a young woman in Texas who initially wanted an abortion, could not obtain one because of a newly enacted restrictive abortion ban but now nevertheless loves her babies. Live Action founder Lila Rose, in a cascade of angry tweets about the Post article, suggested a more accurate headline would read: “This Texas teen considered killing her twin children. The Texas Heartbeat Law saved their lives. Now she can’t imagine life without them.”

Rose apparently wants to call women killers but not punish them.

I’m sure she has her justifications, but I doubt GOP state legislators will care to listen. And it seems highly unlikely that the pro-life movement will be able to “correct” zealous Republican lawmakers in any meaningful way.

In fact, the pro-life movement has traditionally proven itself to be uninterested in being a voice of proportion or even decency within the Republican Party. The relationship is transactional — an artful Trumpian deal if ever there was one. Though the judges Trump nominated hold with all his actual priorities, he got the bonus of conservative religious votes, and the pro-life movement got the victory it has waited a half-century for.

The threat Trump turns out to have represented to the presidency and our democracy will forever be to the detriment of the movement’s integrity and moral credibility. We can only hope that, now that they have their win, the pro-life movement will take a stand against the most egregious transgressions of Trump. 

But it’s more likely that the end of the Roe/Casey regime will not reshape the relationship between anti-abortion advocates and the Republican Party in any meaningful way. Big Pro Life will fight for a federal abortion ban, requiring 60 senators, and continue to pour millions of dollars into GOP campaigns. The Republican Party and pro-life interest groups will remain functionally one and the same.

Which is why they are talking out of both sides of their mouth.

Anti-abortion leaders have long said the most dangerous place for an American to be is in the womb. But very soon, women who obtain illegal abortions will be in grave danger indeed.

Will the pro-life movement fight for them?

I hope so, but I consider pro-life movement leaders far too morally compromised to count on them to deploy their considerable political power on behalf of women they consider victims — but also killers.

(Jacob Lupfer is a writer in Jacksonville, Florida. The views expressed in this commentary do not reflect those of Religion News Service.)