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Op-ed

Here’s why you shouldn’t trust politicians who promise not to prosecute women seeking illegal abortions | GUEST COMMENTARY

Kristi Noem, seen in a 2021 file photo, is seeking special legislative sessions after the Supreme Court's verdict in Dobbs v.

About the only consolation pro-choice advocates could take in the wake of the Supreme Court’s decision in the Dobbs case, removing federal protection of abortion access, is that politicians and establishment pro-life groups were almost universal in saying that women choosing to have abortions will not be prosecuted in states where the procedure is now illegal.

Take the words of the anti-abortion governor of South Dakota, Kristi Noem, who told “ABC News” that when her state’s trigger law making abortions illegal takes effect she didn’t “believe that mothers in this situation [should] ever be prosecuted. Now doctors who knowingly violate the law, they should be prosecuted.”

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So, doctors yes, women no. But the only comfort that women should take in this distinction is a very cold one that may prove to be short-lived.

Let’s look again at Governor Noem. After the Dobbs decision, she claimed on “Fox & Friends” that science has clearly shown that abortions are the taking of a human life. She supplemented that point when she told “ABC News” that doctors who work on babies in the womb describe the babies as “patients” thereby acknowledging that the fetus is a person. The ever available Governor Noem was asked on CNN about whether she would try to add an exception to her state’s abortion law to cover a case like that of a 10-year-old child who was raped in Ohio and had to leave the state to have an abortion. After saying how terrible the crime was (no doubt that would be great comfort to the victim), Ms. Noem acknowledged she would not countenance a rape or incest exception. This is because to her a life is a life.

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The more extreme elements of the anti-abortion movement refer to themselves as abolitionists. Abolitionists believe that any attempt to end a pregnancy from the moment of conception is a homicide, and the woman as well as her doctor should be prosecuted accordingly. How far removed is this from the more establishment pro-life groups and pro-life politicians, and, thus, how likely is it that women too will be prosecuted if affirmative steps are not taken to prevent this? Not far removed and frighteningly likely.

While there are differences in the pro-life movement concerning overall strategy and the specifics of anti-abortion statutes, there is unity in the belief that abortion is the intentional taking of a human life. The law calls that homicide. In fact, the majority opinion in the Dobbs case relied on the point that abortion is about the taking of a life in its attempt to distinguish abortion from other decisions of the court that held as unconstitutional statutes criminalizing homosexual conduct, and those banning birth control and same sex marriage.

While there are highly problematic aspects of the Dobbs case both as to its interpretation of law and its disregard for real world consequences, among the weakest aspects of the majority opinion is the court’s attempt to justify that distinction. Aside from Justice Alito’s conclusory statement that this holding did not apply to those other cases, his only support for this distinction was that abortion was “fundamentally different” than those other rights because abortion “destroys” what earlier cases had called “‘fetal life’ and what the law before us describes as an ‘unborn human being.’“ In other words, homicide.

So why then do establishment anti-abortion groups almost universally favor prosecuting doctors who perform abortions, but not the women who initiate the procedure? It is certainly not based on accepted principles of criminal law. Someone who plans a crime, initiates its fruition and pays for the act is certainly guilty of some crime — be it conspiracy to commit, criminal facilitation, attempt to commit the crime or in some cases the substantive crime itself. A person who hires a hit man to kill someone can be convicted of conspiracy to commit murder even if the victim is never touched. In abortion cases the “fetal life” is extinguished of course.

One possible explanation for why establishment pro-lifers currently oppose prosecuting women is because they recognize, despite all their declarations to the contrary, there are real differences between the fetus and the living person, and that those differences should be reflected in the law. Of course acknowledging this concept opens the door to allowing women the choice of whether to abort, something they cannot accept.

Another reason these groups currently oppose prosecuting women who abort is based on the queasiness about criminalizing a sympathetic figure and especially of the negative public reaction such prosecutions would engender. That doctors who perform abortions in Tennessee, Utah, Wisconsin, Michigan and Missouri face sentences up to 15 years in prison, and life imprisonment in Texas — punishments similar to those for forms of homicide like manslaughter — while women face no criminal charges at all cannot be sustained in either law or logic. Only queasiness and politics can explain it.

Women should not count on either of those protective factors to remain the same over time. We have seen already how the establishment anti-abortion movement emboldened by Dobbs and extreme state legislators has overcome its queasiness about compelling children who are the victims of rape and incest to complete their pregnancies. Prosecuting women could come next.

Steven P. Grossman (sgrossman@ubalt.edu) is Dean Julius Isaacson Professor Emeritus at the University of Baltimore School of Law.


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