Digby at Hullabaloo has been writing for several years about the glaring inconsistency between anti-abortion rhetoric declaiming abortion as murder and anti-abortion statutes which don’t invoke criminal penalties against women who seek or obtain abortions.

The logical inconsistency — and the moral one for those who insist abortion necessarily involves the murder of an unborn child — in legislation such as the South Dakota law is obvious: if abortion is murder, or a crime at all, women should be held criminally liable. I think his line of questioning has the potential to recast the entire debate.

Digby suggests the absence of criminal penalties against women is evidence that anti-abortion activists don’t really think of abortion as murder. I suggested an alternative theory, that legislators and activists think pregnant women aren’t legally responsible for their actions, along the lines of children below the age of reason and the mentally incompetent. Writing in the Los Angeles Times, University of Texas law professor Samuel Buell identifies the third and most likely accurate explanation: throwing women in jail for obtaining abortions would spell political doom for the anti-abortion movement.

Buell also briefly addresses the possibility that in the eyes of anti-abortion movement, pregnant women aren’t responsible for the actions.

In the century or so before Roe vs. Wade, when criminal abortion laws were abundant in the United States, legislatures often explicitly exempted the woman’s behavior from abortion statutes. When they did not, prosecutors and courts found ways to avoid punishing the woman.

In those days, such moves were justified by rationales such as this, from the Connecticut Supreme Court in 1904: “The public policy that underlies this legislation is based largely on protection due to the woman, protection against her own weakness as well as the criminal lust and greed of others. The criminal intent and moral turpitude involved in the violation, by a woman, of the restraint put upon her control over her own person is widely different than that which attends the man who, in clear violation of the law, and for pay and gain of any kind, inflicts an injury upon the body of a woman endangering health and perhaps life.”

And he then dismisses the argument.

Society and the law have entombed the idea that women are weaker of will and less responsible than men. Justice William Brennan, writing in a landmark 1973 case about gender discrimination, stated the modern view: “Our nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”

As for the Connecticut court’s desire to protect women, science has rendered outdated concerns that abortion prohibitions might be necessary to protect women against hazardous medical practices.

Anti-abortion proponents have been unable or unwilling, or both, to address the fundamental conflict between how they characterize abortion and how they criminalize it, and that unwillingness or inability provides an opportunity to shift the debate from the merits of abortion to the hypocrisy or moral cowardice, or both, that prevents anti-abortion advocates from imposing criminal penalties on women who obtain abortions. If abortion is a crime, then treat all participants in it equally and with the severity befitting murder; if it isn’t a crime warranting that treatment, then don’t attempt to ban it or criminalize it.

The likely outcome of a concerted effort to reframe the debate, such as it is, would be the more wide spread exposure of the anti-abortion agenda as what it is: an effort to control the sexual and reproductive behavior of women, and to penalize women who don’t conform to the morality of the anti-abortion crusaders.

It isn’t only abortion where the unwillingness to penalize women for crimes against their foetuses appears: The Unborn Victims of Violence Act established federal penalties for injuring a foetus during the commission of a variety of federal crimes, but doctors performing abortions, women receiving abortions and women who harm their own foetuses in the commission of a crime are specifically exempted. The first two exceptions make sense, since abortion isn’t a federal crime, but the third establishes pregnant women as a class unto themselves with respect to the law.

Buell closes his piece with the admonition that “debate about the constitutional right to privacy and the future of Roe vs. Wade should not obscure the serious flaw at the heart of criminal abortion laws. With a legal exemption for the woman, such laws are either intentionally discriminatory or devoid of rational justification. Without such an exemption, they are politically doomed.”

That is in essence what Digby, and others, have been saying for quite some while now. It’s way past time for pro-choice advocates to make that point a staple of their arguments in favor of the right to choose.

Like this post? Share it!