The Recriminalization of Abortion
Donald Trump’s reelection strategy relies heavily on his appointment of Supreme Court justices who are not only willing, but determined, to overrule the 1973 decision Roe v. Wade. The pro-life camp purports to await this development with immense satisfaction. I doubt, however, that many anti-abortion advocates have seriously considered what present-day criminal prosecutions of abortion would really involve.
I see three big problems.
First, although the pro-life position is that pregnant women who seek abortions should be regarded as victims, and should not be penalized, this simply will not happen. The anti-abortion forces have spent the last 46 years honing their ideology to a high degree of zealotry, and if abortion is murder, then there shouldn’t be any more reason to excuse a pregnant woman who arranges the murder of her fetus than there is to excuse a pregnant woman who arranges the murder of her husband. Some district attorneys may exercise prosecutorial discretion to forbear charging the woman, as was common prior to 1973, but a significant minority absolutely will not.
An enormous complicating factor for the “let’s go back to the old days” narrative is that modern abortion pills did not exist in 1973. Criminalization of abortion will make them illegal, but they will nevertheless be widely available, just as cocaine, meth and other illegal drugs are widely available. Lacking competent medical direction, many women will take them too late, or will overdose. They will then be delivered to the emergency room and, subsequently, to the attention of the prosecutor. The tender regard that the pro-life movement has for the victimized woman can’t possibly apply where the woman is both the villain and the victim. If self-abortion isn’t prosecuted, then all the talk about respecting the sanctity of life will be meaningless.
Second, there is the problem of the suspicious miscarriage. An element of the crime, at least in the minds of certain prosecutors, will be the woman’s failure to show appropriate happiness about being pregnant. It would take real fanaticism to believe that a jury should decide whether a miscarriage was spontaneous, when the medical professionals are in any way uncertain. However, such fanatics do exist, and if given power, they will let neither decency nor humanity stand in their way.
Third, we must not forget the crime of aiding and abetting, which can result in sentences of ten or fifteen years for those who provide information, funding, transportation, and other assistance to women seeking abortions. Such criminals will include husbands, boyfriends, parents, grandparents, siblings, aunts, uncles, adult children, and even non-adult children. (“Honey, I don’t feel well. Can you drive me to the ‘doctor’?” “OK, Mom.”)
In addition to these three problems, the War on Drugs provides an important lesson which should not be overlooked. Only a few years after that effort was commenced in the early 1970s, every objective observer had concluded that it was a failure. The vigorous enforcement and the draconian penalties were inflicting tremendous human grief, but somehow this wasn’t having any real effect on illegal drug use. Nevertheless, the public and legislators alike, having thrown the problem in the lap of the criminal justice system, seemed to lose interest, and permitted the program to stumble on, zombie-like, for decades. Only now, after nearly 50 years, and the highest rate of drug overdose deaths in our history, are we slowly beginning to dismantle this policy disaster.
This experience tells us that the War on Abortion, once instituted, may also be difficult or impossible to reverse in any reasonable time, regardless of how counterproductive it may be, and regardless of the human misery it causes. It is extremely important, in other words, to not even begin to go down the recriminalization road.
New Mexico has a statute, dating from 1969, that makes abortion a felony. Roe w. Wade mooted the 1969 law, but if Roe is overturned, the 1969 law will immediately become effective again. In the 2019 legislative session, a bill to repeal the 1969 law passed the House, but failed in the state Senate, 24 to 18.
If the Senators who voted against the repeal were thinking that they could afford to wait until Roe was overruled before making hard decisions about abortion, they are mistaken. The hard thinking about the post-Roe landscape needs to occur before the Supreme Court acts, and before the criminal justice system has a chance to lurch into action.