Thought of the Day

On jailing women for abortion, Neil Steinberg draws an obvious (but important) conclusion:

[A] fellow columnist was addressing abortion, and he upbraided a presidential candidate who suggested that banning abortion would “criminalize young girls and perhaps their parents.”

“No anti-abortion legislation ever has proposed criminal penalties against women having abortions, much less their parents,” he wrote. “Jailing women is a spurious issue raised by abortion rights activists.”

And he hurries on. But I found myself lingering, wondering why, exactly, this is. Why would abortion rights activists raise the issue of jailing women?

The answer is obvious.

If abortion is to be a crime, as many would like, then somebody has to be punished for the crime. The assumption is that this would be the doctors, exclusively, while the women undergoing the abortions get off, I assume, with a stern lecture.

That is not, however, how it usually works in criminal law. In criminal law, if you are planning to rob a bank, and I drive you to the bank and wait while you are inside doing your business, then I am not an innocent party. I am a bank robber, just like you, and if you shoot a guard while inside, I’m a murderer, too.

So if abortion is murder — the reason we’re banning it, supposedly — then why would not the women who delivered their fetuses up to slaughter be equally guilty as the physician who actually does the deed? That’s how they do it in South America.

The answer, obviously, is because re-criminalizing abortion is a hard enough sell in this country — 34 years and counting, somebody’s dragging their feet — without raising the specter of teenage girls being packed off to jail.

Besides — and this is the strange sociological part — jailing the women would imply that they are complete adults responsible for their acts. And once you admit that, you’re halfway to granting them control of their own bodies, and thus not banning abortion in the first place.

It certainly is a conundrum.

16 comments for “Thought of the Day

  1. Ferox
    November 12, 2007 at 11:11 am

    It’s also a general principle not to punish people necessary to the crime. Prostitution is a crime, but the man paying the prostitute isn’t (in most places) liable for complicity.

    Of course, it’s just as easy to define the newly constitutional abortion crime so as to make the doctor and the woman guilty.

  2. ekf
    November 12, 2007 at 12:58 pm

    What? Since when? It is, perhaps, true that the same crime is not prosecuted in the same way for different participants. With respect to prostitution, “Johns” are certainly prosecutable (and often prosecuted) for solicitation of prostitution. Similarly, a purchaser of illegal drugs may be prosecuted for buying and a seller may be prosecuted for selling (which is the crime). With abortion, the doctor may perform it, but the woman provides her body on which it is performed. Whether it’s aiding and abetting or a separately defined crime, there is plenty of legal precedent in criminal law for having both necessary parties subject to prosecution.

  3. November 12, 2007 at 1:08 pm

    Excellent analysis. Thanks for sharing!

  4. bmc90
    November 12, 2007 at 1:16 pm

    Ask anyone who is against abortion rights whether a person who helps transport a minor to an illegal abortion and pay for it shoudn’t be prosecuted. You will get a resounding hell yes. Until that person gives their niece a ride to the bus station and lends them $100, having been told the niece was going to a cello audition. Then spends hundreds of dollars on lawyers trying to convince a jury that those were the facts.

  5. November 12, 2007 at 1:31 pm

    It’s also a general principle not to punish people necessary to the crime. Prostitution is a crime, but the man paying the prostitute isn’t (in most places) liable for complicity.

    What? I’m pretty sure there are laws against paying for sex. Good try, though.

    The legal issue with abortion would be murder. Anti-choicers have intentionally drafted anti-abortion laws to establish fetal personhood, and the idea that life begins at conception. Terminating a pregnancy, then, would be killing a person. I don’t know of any other area of law wherein you can pay a professional to off someone and you won’t be considered at all culpable.

  6. William
    November 12, 2007 at 1:32 pm

    I think the whole issue of jailing women for abortion is just good, old fashioned, disingenuous bullshit. Of course most pro-lifers would like to see women jailed, but thats a battle they know they cannot win. Instead, they can put pressure on doctors. You don’t even have to jail doctors to effectively push abortion underground, all you have to do is put their licenses on the line. Once you’ve done that, you’ve moved the center of the argument. Then you can go after people who provide abortions for practicing medicine without a license. Maybe a decade after that you push further and try a provider for manslaughter, then maybe murder. Little steps.

    It is important to remember that the pro-life movement has no real drive to be honest and no compunctions about lying. They realize they’re in the minority and are perfectly happy to fight an incremental battle, to push policy and laws that don’t directly go after abortion but set the stage for an assault. Look at all the states in which the murder of a pregnant woman becomes two counts of murder. It was easy to sell because everyone recoils from such a crime, but almost to a man the people who introduced those bills were long time pro-lifers. You set up the precedent, and then maybe a few decades later you use it, once its already been enshrined.

  7. eco
    November 12, 2007 at 2:46 pm

    I think what jill is trying to say is regardless of what anti-choicers actually want, if they criminalize abortion, women would have to be jailed. If you are a co-conspirator to a crime, (the doctor “killing” the “person”), you are held legally responsible for the crime as well, simply because you were part of the conspiracy to commit the crime.

  8. Flowers
    November 12, 2007 at 3:28 pm

    Pre-Roe, women did face criminal prosecution for abortions. They often traded their testimony against their doctor for immunity. No post-Roe law has criminal liability for a woman, but there are many states that still have the pre-Roe laws on the books which could be enforced immediately after Roe falls.

  9. Yuri K.
    November 12, 2007 at 4:29 pm

    It’s about the fact that anti-choicers are completely unable to convince anyone that abortion is what they say it is. If you really believe abortion is murder, you’d be devoutly in favor of jailing women for aborting their fetuses – in fact, you’d probably be pushing for the death penalty for repeat offenders.

    Except nobody wants that, even anti-choicers. It’s not really that they believe abortion is murder, then. It’s about the fact that they believe that women’s bodies are property. You wouldn’t prosecute a house for getting robbed, right? Even if the alarm system was busted? That’s how the antichoice crowd views this. Pretty horrifying comparison, huh?

  10. Bloix
    November 12, 2007 at 4:52 pm

    From the NY Times, 2001, http://query.nytimes.com/gst/fullpage.html?res=9401E0DA113AF93BA25756C0A9679C8B63&n=Top/Reference/Times%20Topics/Organizations/S/Supreme%20Court

    A 24-year-old South Carolina woman has been sentenced to 12 years in prison for killing her unborn fetus by smoking crack cocaine. Legal experts said it was the first such homicide case in the country…
    In 1997, the South Carolina Supreme Court upheld the conviction of a woman who had been charged with child abuse for using cocaine during her pregnancy, ruling that a viable fetus was considered a person under the state’s criminal code. The ruling was the only one of its kind in the country…
    Greg Hembree, the prosecutor in the McKnight case, said he decided to bring her to trial by extending the court’s decision to homicide.
    ”If the child had been smothered by its mother two weeks after being born, there’d be no question about prosecution,” Mr. Hembree said. ”The only difference here is, this was two weeks before the child would have been born. It is still part of a parent’s fundamental responsibility to protect children.” …
    Noting that Ms. McKnight is pregnant again, he added: ”I know for sure that her baby isn’t going to die from crack cocaine this time. That’s one thing I know.”

    If you think prosecutors like Greg Hambee don’t want to throw women into prison for having an abortion, you’re fooling yourself. Hell, if Roe is overruled, they’ll try to have women executed for having an abortion.

  11. Becks
    November 12, 2007 at 6:26 pm

    Yuri K @#9- absolutely horrifying- I’ve never seen it put quite that way- but it really does take the luster off the pro-life argument.

    I have long felt that the Pro-life folks are really the forced pregnancy folks as they are also anti-birth control. It seems so obvious to me. It’s not that they just want to stop abortions, they want women to stop having sex, except under the strict conditions set forth by their religion. In fact- it seems to me that the most strident pro-lifers won’t stop there either- they will march right on down the road of forcing their religion on the rest of us as well.

    They aren’t very subtle about any of it and it amazes me the number of women today who don’t think this is the direction the pro-lifers/anti-choicers are heading.

  12. Karen B.
    November 12, 2007 at 9:43 pm

    . . . jailing the women would imply that they are complete adults responsible for their acts.

    That sums up why I can become quite irritated with people who want to make that decision for me. Me, incapable of having morals, much less applying them? Yeah, right.

    And no, I disagree that the anti-abortion impetus derives from seeing women’s bodies as property (Yuri @ 9) or that women shouldn’t have sex (Becks @ 12). The antis believe that only G-d should decide when to bestow life; conception and birth are simply two notable steps in that process.

    It’s all about the battle of the morals: whose are better, bigger, more important.

  13. wooolf
    November 13, 2007 at 4:50 pm

    Plus- what- is a miscarraige manslaughter then?

  14. Luna
    November 13, 2007 at 7:51 pm

    I have long felt that the Pro-life folks are really the forced pregnancy folks as they are also anti-birth control. It seems so obvious to me. It’s not that they just want to stop abortions, they want women to stop having sex, except under the strict conditions set forth by their religion. In fact- it seems to me that the most strident pro-lifers won’t stop there either- they will march right on down the road of forcing their religion on the rest of us as well.

    Absofriggin’lutely. My sister is one of these wingnuts. She used to run a Pro-Life group in a major city. *shudder*

    When asked about how she can be pro-life when more women die as a result of anti-abortion laws, she said, “Far more babies die when abortion is legal. And besides which, by deciding to have the illegal abortion, she chose to risk her life. The baby doesn’t have that choice!” *sigh* We won’t even go into fetus vs. baby on that one.

    And on BC, well, she’s all for condoms – within a marriage (and outside too, if you absolutely must sin…), but bc pills are chemical abortion according to her husband (who rules the household – she vowed to obey him. Seriously. Oh, and he’s a doctor. Nice, eh?)

    I’ll give her one thing, she adopted a child who’d have otherwise been aborted.

    And yes, she’d like to push her religion on everyone. She’s said as much.

  15. Luna
    November 13, 2007 at 7:53 pm

    Wooolf: Plus- what- is a miscarraige manslaughter then?

    That’s the fear. I mean, criminalize abortion and you’ll have cops on your doorstep for a miscarriage so that you can PROVE it wasn’t your fault. “We have a warrant to search your house for coat hangers, RU486 bottles, alcohol, cigarettes, stairs you might have fallen down on purpose…”

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