When Abortion Is Actually A Crime

What kind of lessons are there to be learned at the end of the day when contemplating the verdict in the case of Tegan Leach and Sergie Brennan of Queensland, Australia?  The facts in the case were not in dispute—Leach did in fact procure RU-486 and performed a private abortion for the simple reason that she didn’t feel prepared yet for motherhood.  The law that she and her partner were prosecuted under is archaic, and Leach was the first woman in 111 years to be prosecuted for her own abortion in Queensland.  The jury returned a unanimous verdict in less than an hour, in part because the law was so archaic it could be interpreted to suggest abortions are only illegal if performed using 19th century practices that often left women dead. This situation is revealing to the Australian public how important it is to let women have the right to choose, and particularly bringing up questions about why Premier Anna Bligh previously blocked attempts to decriminalize abortion.

There are many angles to look at when it comes to the two year national nightmare that was primarily endured by Leach and Brennan.  The most important revelation, however, is the one that feminists in the 60s and 70s learned when they got abortion legalized in the U.S. through a series of speak outs and protests—when the focus is on living, breathing women and their needs and their lives, all but the stalwart misogynists has to see the wisdom in legal abortion.  When faced with the prospect of sending women to jail for being responsible enough to know when they’re not ready to have children, most people blanch.  Once you strip away the anxieties about male power, female sexuality, and existential crisis that anti-choicers deliberately provoke to muddy the waters, and you look at women as human beings, the idea of sending women to jail for taking charge of their own fertility seems like the human rights violation that it actually is.

Of course, the anti-choice movement knows this, which is why they are deliberately dodgy on the question of what they would do to women who obtain abortions if they make abortion a crime.  In fact, the strategy of anti-choicers is to deny that women seeking abortion should be treated like criminals at all, and instead prefer to focus strictly on the doctors who provide abortion.  As Scott Lemieux notes at the link, this is simply trading one kind of sexism for another, since the implication is that women are feeble-minded—in other words, bans on abortion that don’t have criminal penalties for those who actually get abortions are about making women second class citizens who have fewer rights (bodily autonomy) than men, and fewer responsibilities.  Indeed, the law pre-emptively women are mentally incompetent.

The reason anti-choicers choose this kind of paternalistic sexism over the more overt misogyny that would throw women in jail for having abortions is simple: political expedience.  It’s not just the sour taste in people’s mouths at the idea of tossing one third of American women in jail, either.  It’s also because anti-choicers know that the more you look at women and their lives, the harder it is to say they shouldn’t have a say in when they have children. So they prefer to mention women as little as possible, or, if they focus on them, cast them as feeble-minded children who can’t make their own choices instead of grown adults.

But if you ban abortion and create this enormous loophole, then you’re going to see American women using the same strategy used by Tegan Leach, i.e. procuring RU-486 through means both quasi-legal and illegal.  And some will invariably get caught.  What would happen to those women?  Will anti-choicers, like cowardly Australian politicians, feel like it’s just fine for abortion to be going on as long at it’s officially condemned by the government and there’s a satisfying stream of women being sent to the emergency room because they inexpertly tried to self-abort?  Or will they, like the cops in the Leach case, decide that it’s time to start sending women to jail for having the temerity to act as if they know their own situation in terms of readiness to be a mother better than strangers?

My personal feeling is that the anti-choice paternalistic façade that pretends that women simply can’t be held responsible for their own choice to have an abortion will disappear within seconds of an actual ban being instated, and that façade will be replaced with an eagerness to punish women caught having abortions.  You can see the signposts in the way that movement anti-choicers behave towards women they deem sexually disobedient. Look at the case where Ken Buck declined to prosecute a rape, for instance.  It wasn’t that he thought the woman was lying—they had the rapist on tape admitting to the crime.  He appears to have simply thought she was a sexually loose woman who didn’t deserve the same right not to be raped as someone he might consider a good girl, and he obsessed over her supposed abortion in creating this rationalization.  If women only have abortions (which the victim in this case denies anyway) do so because they’re feeble-minded children, then why would Buck treat this woman’s supposed abortion as evidence that she was a bad girl who relinquished her right to the law’s protection against rape?

Or look at the way that conservatives eagerly go after women who give birth to stillborns after using drugs while pregnant.  Surely, if you believe that a woman who openly pays a doctor to perform an abortion can’t be treated like someone who knew what she was doing, then a woman who made an actual, honest-to-god mistake that may have had nothing to do with the outcome of her pregnancy shouldn’t be held responsible, right?  Or maybe what happens to women who get caught by the law using while pregnant is what is what will happen to women who get abortions after it’s banned, after anti-choicers can stop pretending they care about women in order to get the laws they want on the books.    

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  • saltyc

     I like your article and your new profile picture, Amanda.

  • purplemistydez

    It’s a scary thought if abortion is made illegal.  There will be alot of dead women on our hands.

  • freewomyn

    When faced with the prospect of sending women to jail for being responsible enough to know when they’re not ready to have children, most people blanch.  Once you strip away the anxieties about male power, female sexuality, and existential crisis that anti-choicers deliberately provoke to muddy the waters, and you look at women as human beings, the idea of sending women to jail for taking charge of their own fertility seems like the human rights violation that it actually is.


    I think you make an excellent point here, and it’s backed up by the fact that most anti-choicers wouldn’t know how to respond if you asked them what the jail sentence should be for women who get abortions, or for the clinicians who provide them.

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  • plume-assassine

    Not too long ago, I wrote to the “Students for Life” group on my campus, asking them 1) how long women should be put in prison for having an abortion and 2) if miscarriage should be considered manslaughter. They responded with what essentially came down to, “oh, that’s ridiculous! what a canard! the government would never investigate miscarriages! we would never want to punish women!” This is hilarious to me because they don’t understand that that is EXACTLY what would happen if they got their way. They even brought in some anti-choice speaker named Theo Purington who tried to coerce his girlfriend into carrying to term, who even went so far as to call his LAWYER in an effort to stop her from – get this – “violating his rights as a father.”


    This is exactly what the anti-choicers want (but deny), especially when they continue pushing for these unconstitutional laws about “personhood” or “fetal pain.” Women of reproductive age are already being treated as criminals right now in other countries– certainly not just Australia. The “criminalizing doctors only” stance is just a front and it makes no sense, especially for the sidewalk counselors who try sooo hard to convince women to change their minds. If women are unable to think for themselves and totally lack any agency, (and the doctors are the so-called real enemy), then why even bother trying to set up CPCs, “sidewalk counsel,” or get us to change our minds?

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