In a July 2005 video clip recently posted on YouTube, an unidentified man asks pro-life activists whether a woman should serve time in jail if she were convicted of abortion in a hypothetical post-Roe v. Wade world. The demonstrators shift feet, flush, show all the signs of thinking as they speak. The interviewer pushes them. Some of their conversations go in circles. Several of the pro-life activists admit they have been participating in anti-abortion demonstrations for years without considering the question of penalties.
Abortion rights advocates see an opportunity in that confusion. Organizations such as Planned Parenthood and the new National Institute for Reproductive Health are encouraging people to ask politicians, "How much time should she serve?" The question shows "that choice can be a winning issue if you force people to stop evading the hard facts," Anna Quindlen wrote in a recent Newsweek column. Quindlen suggests that people who have pro-life convictions haven't thought past their animosity to the idea of abortion.
"Perhaps rank-and-file pro-lifers haven't thought through that," responded Carrie Gordon Earll, senior policy analyst for bioethics at Focus on the Family. "But the people who are doing abortion policy in the pro-life movement have thought about that."
Olivia Gans, who had an abortion in 1981, said, "When I looked at those faces [in the YouTube video], what I saw was a comprehension that women like me are going through something that is extraordinary in its scope, but I also saw a lack of understanding of how the law works." Gans is now director of American Victims of Abortion, a branch of the National Right to Life Committee.
Quindlen wrote, "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." Not true, says Earll: "Penalizing the woman is not even on the table."
Historically, abortion legislation has recognized another choice: Hold the person who is most directly responsible for the abortion liable.
Charmaine Yoest, vice president of communications at the Family Research Council, explained that she sees abortion as an act of violence against both a woman and her child. "We've always argued that the doctor is the appropriate target because they're the ones who are actually performingthere's no nice way of saying itthey're the ones who are actually murdering the baby," she said.
As far as prosecution goes, Earll said, abortion is a more complicated issue than murder. She explained that in legal history, a woman who had an abortion was comparable to a battered woman who hurt someone in self-defense.
Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission, said abortion is not the same as murder, since there is no cultural understanding that a fetus is a person. But if abortion were made illegal and he were a state legislator, Land said, "I would probably charge voluntary manslaughter for the abortionist. If [a doctor] were convicted, he would lose his medical license for two years and spend a year in prison with the first offense, and with the second offense, he would lose his medical license for life. At which point it'd be very difficult to find a doctor who'd do them."
Such a legal stance is tantamount to "ignoring or infantilizing women, turning them into 'victims' of their own free will," Quindlen wrote. "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."
Land doesn't deny that women who have abortions might be addled, but he, along with Yoest, Earll, and Gans, takes exception to them being described as bystandersor as enlightened women making free, educated choices.
"It's not demeaning to assume that any person who is a mother who could make the decision to do this must be suffering from some form of psychological impairment because of the crisis of the pregnancy or because of societal demeaning of human life," Land said.
Gans said the primary responsibility should fall to those with the information necessary to make an educated choice. "The only advice [women with unwanted pregnancies] are being given [is from] the very people who stand to gain from our circumstances," she said. "I have heard my sisters say again and again, 'I didn't think I had any choice. I wasn't told there were any other choices I could make.'"
She believes that those who perform abortions are doing it for the money. "We know as a rule that if you approach this subject with civil remedies, abortionists get out of the business of abortion."
Would making most abortion procedures illegal cause women to seek deadly, unprofessional abortions? Almost certainly not, Earll said. "What we saw with abortion is that when it's illegal, most women don't try to have one. The law is a teacher in this."
Moreover, it's a false assumption that even legal abortions are safe, said Yoest. "Women are still at serious risk. Abortion is the most unregulated health provider industry in the country today. We don't keep good records of outcomes of abortion for women."
Illegal abortion remains many steps off, even if Roe were overturned tomorrow. If the Supreme Court reversed the 1973 decision and the issue of abortion were returned to the states, Land said he would expect a range of laws across the U. S. defining permissible types and circumstances of abortion. He does not expect abortion to be entirely outlawed or restricted to saving the life of the mother in any state.
Some pro-life leaders think the very question of whether a woman should do time for an abortion indicates that the tide is turning on Roe v. Wade. While planning for illegalized abortion is speculative, Land, Gans, and Earll believe that Roe will be reversed some daysooner rather than later, said Land. "It'll happen in my lifetime. And I'm 60." The pro-life movement, he added, is prepared for the subsequent changes.
"When you see the laws changing," said Gans, who believes the reversal of Roe is a long way off, "You see women looking for what they really wantwhat they told us again and again in study after study are real help, real assistance, and real alternatives that provide for them and their unborn children."
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Recent articles on legislation and abortion are in our life ethics section and include:
Q&A: Rep. Heath Shuler | Shuler, a Democratic Congressman from North Carolina who ran as a social conservative, defeated a Republican incumbent in 2006. (June 26, 2007)
Partial Reversal | The Supreme Court's abortion decision shows that the arguments have changed. (May 14, 2007)
Don't Cede the High Ground | Our abortion views don't rest on sociological data. (March 25, 2007)
Total Victory on Partial-Birth Abortion | Prolife leaders applaud Supreme Court's first regulation on an abortion procedure. (March 19, 2007)