Unsafe, Illegal and On a Prayer: The No-Roe Plan


There were many disturbing moments during the Republican presidential debates last week: The menacing bible-guy thrusting the King James forward like a handgun, the smack down of the seventy-old gay general and, of course, the creepiness of Mitt Romney, who seems to drum up oily sincerity over a dropped napkin. But what had to be one of the more defining moments of the strange night occurred when the question turned to abortion. The graying, gray or bald white men all seemed to nod in agreement on a breathtaking (though unstated) policy initiative for women: the DIY abortion.

The question posed by the "young lady," as homey Fred Thompson called the gal, was: If abortion is outlawed then who is the criminal: woman, doctor, or both? This has always been the sticky question for the anti-abortion side. Do they intend to start locking up women for murder? Stunningly, Fred Thompson, National Right to Life's endorsed candidate, said no. He suggested that some people will be able to perform abortions with no fear of prosecution: women on themselves. Thompson explained his (and one figures, National Right to Life's) bold new plan that would kick in once Roe is overturned. Said Thompson, "The question is who gets penalized and what should be the penalty. I think it should be fashioned along the same lines it is now. Most states have abortion laws that outlaw abortion after viability and [the criminal penalty] goes to the doctor performing the abortion not the girl, the young girl, her parents, or whoever it might be. I think that same pattern needs to be followed." Under this plan, apparently a woman is free to perform an abortion on herself, possibly with the help of her parents or "whoever it might be" as long as a physician or a health care provider actually skilled to provide safe abortion care isn't involved.

The last time the United States banned abortion — pre-Roe — doctors faced only minimal penalties for providing safe care. Apparently Thompson, and every GOP candidate except Rudy Giuliani agree, that policy was a mistake. This time around the crime of abortion, if (and apparently only if) performed by a doctor, will be murder and extreme penalties will apply. It seems clear that the environment post-Roe will be harsher than pre-Roe.

Last time around, a clandestine network of safe abortion services sprung up. This time, if the anti-abortion candidates have their way, the risk for physicians would be too great. And so women who can't reach safe care will be much more likely to take matters into their own hands, which the Republicans apparently don't mind. At least, this is the newest talking point assigned by right-to-life headquarters (and picked up by Republicans pandering to these reliable voters). This new messaging has a brief but important history. It surfaced after Anna Quindlen's August article in Newsweek on the National Institute for Reproductive Health's "How Much Time?" campaign. The goal of the campaign is to have voters ask anti-abortion candidates how much jail time they think a woman should serve if Roe is overturned and she has an illegal abortion. If abortion is a crime, then women are the perpetrators and penalties should apply, no?

Politically, of course, this is not where Right to Life wants to be: allowing Americans to imagine handcuffed women taking perp walks. And so Right to Life in its most recent rollout has sought to pre-empt this image and answer the question highlighted by Quindlen. If a woman takes matters into her own hands, there will be no penalty other than the danger she risks to her health and life, says right to lifers — she won't get time, just prayers. And so, here is the pro-life movement's biggest idea since banned abortion: the Do-It-Yourself abortion.

In August, the National Review, in what seems a hustle to counter the Institute's campaign, convened legal experts, scholars and leaders of the anti-abortion movement for a " symposium" to help create talking points on the issue. The dilemma was this: How to justify charging one person, a doctor, with the crime of murder for performing an abortion and another, the woman, with nothing for the same act? The solution was simple. Treat the women having the abortion as, essentially, a child. Most of the legal scholars and anti-abortion functionaries clearly agreed: women in need of abortion must be viewed as not fully intellectual beings able to make decisions for themselves. They are victims of circumstance (or greed – in this view abortion providers are only in it for the money). And so, it follows, the decision to have an abortion is not fully consented to. "Most women who get abortions are under tremendous stress and pressure, and few of them recognize the full humanity of the child in utero. This goes to the woman's mens rea and, accordingly, to the reasonable legislative judgment about the non-punishment of the mother," explained Wendy Long, legal counsel at the Judicial Confirmation Network a group that supports the appointment of "strict constructionist" judges, i.e. those who will overturn Roe.

Fascinatingly, just submitting to the dangers of illegal abortion, and putting the "child" at harm, is further proof of the woman's mental incompetence, they suggest. Joseph Dellapenna, professor of law at Villanova University School of Law, explains, "Until less than a century ago, abortion under the best of circumstances was an extremely dangerous activity and under less than ideal circumstances was tantamount to suicide. As a result, a strong tradition arose that women were victims of the abortion and not perpetrators." It was so dangerous, in other words, you'd have to be crazy to do it.

Casting women as victims and incompetent moral agents has long been an unstated assumption of the anti-abortion movement. Indeed, it serves as the philosophical architecture of recent attempts to ban abortion. It was in large part what Justice Kennedy used to justify upholding the Federal Abortion Ban, writing, "It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." The South Dakota Abortion Ban, which captivated American politics for months, was for the most part built on the premise that no woman in her right mind would murder her own baby; therefore, women seeking abortion were clearly not thinking straight. Once women are viewed as mentally (or emotionally) deficient, as irrational decision-makers, it's a quick step to: they shouldn't be held accountable for what they do. This is why the anti-choice movement has invested so much in the "I regret my abortion" campaigns. The only rational woman is one who admits she is irrational.

The unfortunate reality – always the rough patch for right to lifers – is that there's already ample evidence that women, and/or their loved ones, will be tried for DIY abortions. Bear in mind that whatever Fred Thompson says, penalties for the crime of abortion won't be controlled by the federal government. It's the states (where zealous legislators can't seem to find an anti-abortion law they don't like) that will set the penalties. And they already are. As Lynn Paltrow, president of National Advocates for Pregnant Women, points out, "Even with Roe still in effect, there are women who have been arrested and are serving time on murder charges for having suffered unintentional stillbirths. In South Carolina, a woman was convicted of homicide by child abuse based on the scientifically unsupported claim that her drug use during pregnancy caused her to suffer a stillbirth. In Utah, a woman was charged with murder based on the claim that she caused a stillbirth by refusing to have a c-section earlier in her pregnancy. If women are now being arrested as murderers for having suffered stillbirths, one should assume that in a post-Roe world intentional abortions would be punished just as seriously."

During the Republican debate, there were some anti-abortion ideas that seemed even too preposterous for the rabidly anti-choice. Will there be a "federal abortion police" force? Candidate Ron Paul seemed to think that would be too difficult.

But let's not shelve it too quickly. Other "pro-life" wonderlands, with far less resources than the US, have done just that. In El Salvador, for example, they do use police. Actually they're called "forensic gynecologists," and they investigate possible crime scenes (in other words: women's bodies) after a miscarriage because, of course, once abortion is illegal every miscarriage is suspect. Closer to home, the immediate past Attorney General of Kansas, Phill Kline, attempted some version of this. He seized abortion patients' records in an attempt to find misdeeds on the part of the physician.

One last disturbing takeaway from the Republican presidential candidates should put every American on edge. Given the pro-life movement's attempts to conflate abortion and contraception, "pro-life" politicians consistently signal that they are uncomfortable with birth control. While Governor of Massachusetts, Mitt Romney, now as adamantly pro-life as he once was pro-choice, received a bill on contraception. It would have made emergency contraception (EC) more widely available. He vetoed it because, he believes, EC is an "abortive" drug. It's a belief he shares with the whole of the right to life movement. So the next frightening question posed by GOP candidates is this: in a no-Roe, DIY abortion world, will doctors who dispense EC face the same criminal penalties as those providing abortions? The more we learn of the GOP's no-Roe plan, the more surreal it becomes. After all, to them it's not just unclear what's a crime, it's also unclear what's abortion.

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  • invalid-0

    “The last time the United States banned abortion — pre-Roe…”

    The United States has never made abortions illegal. The states made them illegal. Up to that time it was fairly universally agreed that there was little difference between abortion and murder so most all states (I believe Washington DC allowed abortions) banned them to one degree or another. Roe changed the playing field by not allowing states to make abortions illegal (though the line has refined a bit over time).

  • invalid-0

    You really skewed Ron Paul’s stance on the issue when you said “During the Republican debate, there were some anti-abortion ideas that seemed even too preposterous for the rabidly anti-choice. Will there be a “federal abortion police” force? Candidate Ron Paul seemed to think that would be too difficult.”

    Ron Paul was arguing strongly that the abortion issue is not a federal issue at all and therefore is a issue for the states. The Constitution does not grant the federal government the power to regulate abortion, let alone drugs or many other things the feds currently do.

    Some states would have stricter laws than others. Ron Paul’s biggest gripe with abortion seems to be mostly against 3rd trimester abortions because as an ob/gyn he has delivered thousands of babies and knows when they are viable. It is absolutely ridiculous as a matter of policy that a woman can have an abortion on a healthy baby and it be paid for by taxes, yet if that same baby was delivered alive and then stuck in a trash can that a person can be charged with murder and locked up.

  • invalid-0

    CNN Youtube Debate:

    “…we don’t need a federal abortion police, that’s the last thing we need…”

    ~Ron Paul

  • scott-swenson

    The notion that Ron Paul's views are based solely on his medical experience, not his ideology, is another example of how people who would limit a woman's medical options play with language and facts. There are many physicians with the exact same medical experience as Ron Paul, that have come to less political and ideological conclusions.


    Be the change you seek,

    Scott Swenson, Editor

  • invalid-0

    The fact that most all states decided to put into place bans on abortion (along with contraception also) in the mid to late 1800s does not translate to ‘it was fairly universally agreed that there was little difference between abortion and murder’. States share many bans against other actions that are not murder, many of which had stiffer penalties than the anti-abortion laws did. Instead, as pointed out in the article above, the penalties were minimal against the doctor.

  • harry834

    "The United States has never made abortions illegal. The states made them illegal"

    That's a good distinction, I'm glad you brought it up. But it will be of little comfort once several of these individual states start banning abortion. They won't be federal law, but the pathwork of restrictive state laws will make the United States a more restrictive place.

     

  • emily-douglas

    Posting on behalf of Cristina Page:

    "Point taken. You are correct, Ron Paul did say he is against federal abortion police. But the real point here is that this is just a jurisdictional squabble. Paul is in support of abortion police, just at the state level."

  • harry834

    exactly. I don't know how much weight the president can swing at the federal level, but something can be done to protect access, and Ron Paul refuses to do anything.

     

  • http://jivinjehoshaphat.blogspot.com invalid-0

    Cristina,
    You write, “The last time the United States banned abortion — pre-Roe — doctors faced only minimal penalties for providing safe care.”

    Abortion was a felony in numerous states pre-Roe regardless of how safe it was for the woman. Do you consider spending more than a year in jail to be a “minimal penalty.” Or were you for some reason unaware of what the punishments in numerous states for performing abortions were pre-Roe? Or were you being intentionally deceptive so could try to make a point?

  • invalid-0

    So my freedom and liberty are a matter of “state’s rights?” Like how slavery and civil rights were “state’s rights” issues? ** A portion of the comment was deleted due to its uncivil or offensive nature **

  • invalid-0

    In fact, Texas (whose abortion ban sparked roe v. wade) specifically did not see fetuses as people, or by extension abortion as murder. (source: A Matter of Choice, by Sarah Weddington. an interesting if somewhat dated book. check it out)

  • http://www.condomman.com invalid-0

    Just the fact that he put it forth as a viable idea during the debate shows where his mindset is. He is mentioning it as a valid and debateable point. From the context of when he said that, it was as if he was saying, “I would set up a national abortion police if I could, but it would just be too costly and ineffective.” So his reasons for being against it were not because of its nightmarish and Draconian infringement on women’s rights, but rather because he doesn’t want his rich friends to have to pay the policemen’s salaries.

  • invalid-0

    JivinJ on Dec. 4, 2007 @ 4:09PM

    Amazing! The voice of reason and sanity. Absolutely amazing.

  • scott-swenson

    Good point, but Mike Huckabee's "my morality has no border" (and no limits in its ability to control the health decisions of women) makes it clear that at least he would like the US to ban abortion completely. Once again, it is important for everyone to be familiar with what happens when countries ban abortions … nothing. Bans have no effect on the number of abortions according to a Guttmacher study published by the internationally respected medical journal The Lancet.


    Be the change you seek,

    Scott Swenson, Editor

  • invalid-0

    Excellent point, Scott. I did want to interject that unfortunately there is something that happens when countries ban abortions – women are severely injured or die from unsafe abortion procedures. Since Nicaragua banned abortions, more than eighty women have died from illegal, unsafe abortion procedures. Women with the financial ability, will always be able to access safe abortion procedures – no matter whether it's banned or not. It's the poor women who die – by the thousands around the world where abortion is illegal. Horrible statistics that those who support making abortion illegal seem to ignore.

  • invalid-0

    is the realization if this issue is thrown back to the states, mostly MALE legislators (who will never have to make this choice) will be deciding for the women of each state. What business is this of a politician, a complete stranger?

  • emily-douglas

    Posting on behalf of Cristina Page:

    From "When Abortion Was a Crime," by Leslie Reagan: "In enforcing the criminal abortion laws, prosecutors learned to concentrate on cases where they had a "victim"–a woman who had died at the hands of a criminal abortionist. Popular tolerance of abortion had tempered enforcement of the criminal abortion laws and helped create the focus on fatalities." pg 116.

    That's what I meant by: "The last time the United States bannedabortion — pre-Roe — doctors faced only minimal penalties forproviding safe care." The operative term is 'safe.'

    On a different note, JivinJ, wondering if you're still deep in denial
    over your movement's opposition to contraception? In the months since you've accused me of fabricating anti-choice opposition to birth control, wondering if you've found even one anti-abortion group that supports birth control: the only proven way to prevent abortion?

  • emily-douglas

    Another comment from Cristina Page:

    Also JivinJ:

    You write on your blog regarding my post, "Page then, after hammering away with some other pro-choice talking points, goes on to claim the "whole of the right to life movement" believes emergency contraception is an "abortive drug." Her evidence for this blanket statement? Nothing."

    I document it, ad naseum, in my book. Time to get with the program, JivinJ, you are supposed to think (wish) hormonal birth control causes abortion. You seem to be the only pro-lifer in the galaxy who hasn't gotten the internal memo. Really, it's embarassing. If the pro-life movement weren't leading these insidious campaigns why would your movement's most respected physicians implore pro-life groups to stop them? Or are these physicians prone to write statements publicly rebuking their brethren for campaigns and positions that don't exist? Below are a few examples you seek representing the amount I was ample to pull off the internet in about seven minutes and even choosing only original sources: the anti-abortion groups own sites). And from now on please spare me the task of proving to you the painfully obvious. I've written a book that explore this topic at length. Since you seem interested in documentation, I think you'll be comforted by the thoroughness of the research and quality of sources I've used. In the meantime, why don't you indulge us by proving there's even one pro-life group in the United States that supports emergency contraception. Cause the pro-life movement, as far as I can tell, seems pretty snug under my "blanket statement."

    A tiny sampling of pro-life groups that claim EC is an abortifacient:
    No Room For Contraception: http://www.noroomforcontraception.com/Articles/Emergency-Contraception-Plan-B-013.htm
    ALL: http://www.all.org/article.php?id=10130
    AAPLOG:http://www.aaplog.org/newsreleaseFDAandPlanB082806.htm
    USCCB: http://www.usccb.org/prolife/issues/abortion/fact1098.shtml
    Pro-Life Wisconsin: http://www.prolifewisconsin.org/news_story.asp?id=193
    Mass Citizens for Life: http://www.masscitizensforlife.org/index.php?module=pagemaster&PAGE_user_op=view_page&PAGE_id=85
    Texas Right to Life: http://www.texasrighttolife.com/pdf_forms_docs/updates/1202.html
    CWFA: http://www.cwfa.org/articledisplay.asp?id=1559&department=CWA&categoryid=life

  • http://jivinjehoshaphat.blogspot.com invalid-0

    Cristina,
    The problem with your blanket statement is that it claims “the whole of the right to life movement.” You didn’t provide any evidence to back this up in your post or in your recent comment. You provided evidence that numerous prolife groups believe EC to be abortive at times but nothing to prove the “whole” movement does. I have no qualms with the claim that numerous prolife groups believe EC to be abortifacient. But that’s not the claim you made.

    Unable to prove your original claim that the whole of prolife movement (because you can’t – I’m a part of the prolife movement and I don’t believe EC is abortifacient) now you’re challenging me to find one prolife groups that supports EC. That’s different than believing EC is not an abortifacient and a rather obvious non-sequitur. However, numerous prolifers have done some research into what the mechanisms of EC might be and have come to the conclusion that it is likely it isn’t abortifacient. For example,

    http://lti-blog.blogspot.com/search?q=emergency+contraception
    http://jivinjehoshaphat.blogspot.com/2006/09/emergency-contraception-review.html
    http://www.prolifetechnology.org/proceedings/2006/paper/rivet.pdf
    http://alesrarus.funkydung.com/archives/2375

    But you can feel free to continue your reckless and blanket statements in your goal of attacking prolifers instead of making reasoned arguments for why the killing of human beings should remain legal.

  • http://jivinjehoshaphat.blogspot.com invalid-0

    Cristina,
    Abortionists faced felony charges in numerous states pre-Roe. For you to claim they faced “minimal penalties for providing safe care” is simply not true.

    They faced years in prison regardless of whether the woman was hurt or not.

    The reason you make this obviously false claim is because later in your post you want to act like abortionists won’t perform illegal abortions (like they did pre-Roe) if Roe is overturned because the penalties will be so severe. Which makes not a lick of sense if someone knows that abortion was a felony pre-Roe and that abortionists risked jail time for breaking the law back then. Your deception is obvious. Which is why you want to change the conversation towards birth control.

    What’s National Right to Life Committee’s position on contraception? Feminists for Life? Focus on the Family? As far as I know, none of them have positions opposing contraception.

    Not having an official statement promoting/supporting birth control doesn’t equal being opposed to birth control. Your sad attempts to act like Organization A is opposed to birth control because they don’t have a position on birth control is tired, false equation.

    You think the only proven way to prevent abortion is birth control? Are you serious?

    Answer me this – why do states like New York (where you live and work) and California which have high rankings from NARAL on contraception have the highest abortion rates in the United States per resident where other states which rank much lower on NARAL’s contraception scale have much lower abortion rates?

  • invalid-0

    The entire problem is a sex-saturated society that wants to be free to have sex whenever with whomever with no consequences, i.e., no unwanted pregnancies. “I want to have sex but I don’t want to get pregnant!” Well, maybe you should consider being sterilized, then you won’t burden yourself and society with unwanted pregnancies. Anecdotal incidents aside, the reality is that women have sex with some guy, get pregnant, don’t want to be pregnant, so they get an abortion. It’s mostly as simple as that, repeated hundreds of times everyday all over the country. We have these huge moral and ethical discussions all because of flibbertigibbets who can’t keep their pants on until they are in a loving, committed, permanent relationship where children are welcome. If you don’t want to have children, get your tubes tied. That would spare this culture most of this angst.

  • harry834

    "If you don't want to have children, get your tubes tied. That would spare this culture most of this angst."

    Or recognize this is the 21st century and reversible birth control like pills and condoms exist. I do regret that a lot of the anti-abortion comments have also given off anti-sex messages. Sterilization is the beginning and the end of their knowledge of birth control. This backwards advice has no place in modern reality.

    The world changes, but some remain trapped in the ignorant past.

  • invalid-0

    Isn’t it fun to twist what people say so you can disagree with them? Do tell me.

    Tell me also, even if the “majority” of pro-life members are not against–or even support–contraception, then why are a great many of the pro-life people in the government, the people that have been voted in by a majority of pro-life members, pushing foreign policy and domestic policy in a no-abortio/no-contraception/no-choice-but-our-choice-for-you direction? I’d love to know who you pro-life members are voting for if not these.

    I suppose it’s a matter of lesser evils. Better to have high-up people who are against abortion than vote in defenders of contraception, and leave the mentally incompetent (or just not prepared mentally, physically, or financially) free to kill their fresh-baked children.

  • http://jivinjehoshaphat.blogspot.com invalid-0

    Tsuki,
    Please provide evidence of how I’ve twisted words when you accuse me of doing so. It’s kind of lame to accuse someone of something and then provide no evidence to back up your accusations.

    Which foreign policy initiatives push a no-contraceptives approach? Could you provide some evidence for your claims? Are you referring to the Mexico city policy? This policy doesn’t push that approach – it just doesn’t allow federal funding for organizations that provide and promote abortion overseas. The organizations could still receive funding if they chose to end their overseas advocacy for abortion. Unfortunately, they typically choose to continue to promote abortion instead of receiving funding.

  • invalid-0

    JivinJ said:
    “It’s kind of lame to accuse someone of something and then provide no evidence to back up your accusations.”

    You have described yourself perfectly.

  • http://jivinjehoshaphat.blogspot.com invalid-0

    Munchkinpup,
    Please show me where I provided no evidence to back up my accusations. What didn’t I provide evidence for??