How Much Jail Time?

Buried among prairie dogs and amateur animation shorts on YouTube is a curious little mini-documentary shot in front of an abortion clinic in Libertyville, Ill. The man behind the camera is asking demonstrators who want abortion criminalized what the penalty should be for a woman who has one nonetheless. You have rarely seen people look more gobsmacked. It’s as though the guy has asked them to solve quadratic equations. Here are a range of responses: “I’ve never really thought about it.” “I don’t have an answer for that.” “I don’t know.” “Just pray for them.”

You have to hand it to the questioner; he struggles manfully. “Usually when things are illegal there’s a penalty attached,” he explains patiently. But he can’t get a single person to be decisive about the crux of a matter they have been approaching with absolute certainty.

A new public-policy group called the National Institute for Reproductive Health wants to take this contradiction and make it the centerpiece of a national conversation, along with a slogan that stops people in their tracks: how much time should she do? If the Supreme Court decides abortion is not protected by a constitutional guarantee of privacy, the issue will revert to the states. If it goes to the states, some, perhaps many, will ban abortion. If abortion is made a crime, then surely the woman who has one is a criminal. But, boy, do the doctrinaire suddenly turn squirrelly at the prospect of throwing women in jail.

“They never connect the dots,” says Jill June, president of Planned Parenthood of Greater Iowa. But her organization urged voters to do just that in the last gubernatorial election, in which the Republican contender believed abortion should be illegal even in cases of rape and incest. “We wanted him to tell the women of Iowa exactly how much time he expected them to serve in jail if they had an abortion,” June recalled. Chet Culver, the Democrat who unabashedly favors legal abortion, won that race, proving that choice can be a winning issue if you force people to stop evading the hard facts. “How have we come this far in the debate and been oblivious to the logical ramifications of making abortion illegal?” June says.

Perhaps by ignoring or infantilizing women, turning them into “victims” of their own free will. State statutes that propose punishing only a physician suggest the woman was merely some addled bystander who happened to find herself in the wrong stirrups at the wrong time. Such a view seemed to be a vestige of the past until the Supreme Court handed down its most recent abortion decision upholding a federal prohibition on a specific procedure. Justice Anthony Kennedy, obviously feeling excessively paternal, argued that the ban protected women from themselves. “While we find no reliable data to measure the phenomenon,” he wrote, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

Even with “no reliable data,” he went on to conclude that “severe depression and loss of esteem can follow.” (Apparently, no one has told Justice Kennedy about the severe depression and loss of esteem that can follow bearing and raising a baby you can’t afford and didn’t want.) Luckily, there still remains one justice on the court who has actually been pregnant, and Ruth Bader Ginsburg roared back with a dissent that called Kennedy’s caveat about regret an “anti-abortion shibboleth” and his opinion a reflection of “ancient notions about women’s place in the family and under the Constitution-ideas that have long since been discredited.”

Those ancient notions undergird the refusal to confront the logical endpoint of criminalization. Lawmakers in a number of states have already passed or are considering statutes designed to outlaw abortion if Roe is overturned. But almost none hold the woman, the person who set the so-called crime in motion, accountable. Is the message that women are not to be held responsible for their actions? Or is it merely that those writing the laws understand that if women were going to jail, the vast majority of Americans would violently object? Watch the demonstrators in Libertyville try to worm their way out of the hypocrisy: It’s murder, but she’ll get her punishment from God. It’s murder, but it depends on her state of mind. It’s murder, but the penalty should be … counseling?

The great thing about video is that you can see the mental wheels turning as these people realize that they somehow have overlooked something central while they were slinging certainties. Nearly 20 years ago, in a presidential debate, George Bush the elder was asked this very question, whether in making abortion illegal he would punish the woman who had one. “I haven’t sorted out the penalties,” he said lamely. Neither, it turns out, has anyone else. But there are only two logical 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, you have to accept the second. You can’t have it both ways.

Originally published in the August 6, 2007 edition of Newsweek.

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  • invalid-0

    First off, I just noticed the “Math Question” Is this a way to keep stupid people like myself out?

    This looks like a very professional site and I’m pleased to comment. This is a very intriguing question and strikes me as leading away from the subject at hand. Prior to reading Quindlen’s essay yesterday I hadn’t considered this angle, so I appreciate further food for thought, however, I see no logic in the either or conclusion that the author arrives at.

    This conclusion paints Ms. Quindlen in as ignorant a light as she portrays those with the “blinded by the headlights” gaze.

    For all the lack of concern in those portrayed as being against “reproductive rights” their lack of consideration on this question could also paint them as having a heart in the sense that they do not want to overtly or vindictively punish women that have an abortion. Rather going after those that perform them is a means of curtailing the practice as presumably doctors wish to stay out of jail, avoid fines or don’t want to lose their licenses.

    The only advantage seen in asking and framing the debate as suggested is to further move from the truly difficult questions that this practice raises. This strikes me as an extremely disingenuous way in the public discourse of a debate that has two very, very strong arguments in their favor.

    If the “reproductive rights” is the winning argument it shouldn’t require the semantics of reinventing terminology every few years leading to the most recent of “reproductive rights.” What are you hiding or avoiding?

    If it must come down to a question like this, then I’d suggest possibly five years or probation, community service and perhaps having to clean up after a day of abortions. These first at first reflective responses of course take the womans (we wouldn’t want to call her a “mother” at least to this child) health into question and of course other factors; it is after all a quandary that depends upon honest discussion among the various viewpoints.

  • invalid-0

    Blandly Urbane, you state that you don’t see the logic; Let’s narrow this down, then.

    If abortion is illegal, than having an abortion makes a woman a criminal. Can you understand that logic? It’s not about doctors performing abortions, it’s about women who request abortions. Kinda like men who pay women for sex are criminals, because buying sex is illegal. We only seem to hear about the women selling sex, or the doctors performing abortions–we don’t think about the other side of the equation.

    So, now that we have established that women who have illegal abortions are criminals, you mentioned 5 years, probation, community service…and then this little gem:

    “perhaps having to clean up after a day of abortions.”

    Whoa. Back up. You just suggested that she have to clean up after an illegal activity. Who is going to be having these messy abortions that require cleaning up? Well, you did mention health of the mother and such. So you’d like to rub a woman’s nose in the mess of a legal abortion, then?

    This isn’t a job for an untrained person to handle. Cleaning the equipment used in abortions requires a level of skill that not all women have, in order to make abortion SAFE. You’re endangering the safety of legal abortions in order to punish a woman for having an illegal abortion because she couldn’t afford to raise a child?

    This isn’t justice. This is retribution. That tells me a lot about your frame of mind, Blandly Urbane. I doubt you are capable of participating in honest discussion.


  • tyler-lepard

    The video of the Libertyville demonstration is on (YouTube has taken it down from their site).


    Also, the math question is not an IQ test — it just verifies that commenters are human and not spambots.

  • invalid-0

    Edie you state:

    “that tells me a lot about your frame of mind, Blandly Urbane. I doubt you are capable of participating in honest discussion.”

    First thoughts to a new angle in the “debate.” My stupid remark regarding “clean up,” excruciatingly nasty and thoughtless on my part. You respond back with “logic of it’s being illegal..”

    I’ve reread my comment and it could use some work, although I did have some points worth discussing, but as you said, I guess the requires “honest discussion,” and I don’t do that.

    Try passion in place of anger

  • invalid-0

    Yeah, I know; I just get a kick out of them and always want to drop a smart a*s response, but of course that wouldn’t have quite the affect I’d be looking for.