Baltimore Sun

Don’t think they won’t prosecute abortions

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

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.”

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.

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.

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