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

Cristina Page

At the CNN/YouTube Republican debate last week, the Republican presidential contenders all seemed to nod in agreement on a breathtaking (though unstated) policy initiative for women: the DIY abortion.

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?

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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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