State legislatures are drafting a flurry of anti-abortion legislation, some of which are truly remarkable, with Roe v. Wade now out of reach. Missouri has been the only state to try to limit out-ofstate travel for abortion. It proposed to treat the shipment or delivery of abortion pills as drug trafficking and to make it a crime to perform an abortion in an ectopic (in which a fertilized eggs implant outside the womb), which can be life-threatening.
In the past, many extreme bills like these would have captured the public’s attention and then quickly disappeared, swept under the rug by lawmakers and abortion opponents who had easier-to-enact plans for dismantling abortion rights.
The past year has been interesting in a few ways. One, some fringe bills are actually coming into effect. S.B. 8, the Texas law that bans abortion after about six weeks of pregnancy and allows people to sue those who “aid or abet” abortion for at least $10,000, started wreaking havoc in the state in September. S.B. 8-style bills were not on anyone’s radar. Now, they’re spreading, with Idaho passing its own version in recent days.
Some bills will not succeed, but others will have an impact on national conversations about women who have had abortions. That’s another way things have changed in recent months: Some of this new crop of bills reflect a change in how the anti-abortion movement portrays such women, depicting them as serious criminals rather than innocent victims of the “abortion industry,” as had been common in the past. This rhetorical and legal shift is a powerful signal about who is likely face criminal punishment once Roe is eliminated, as it is expected that it will be this summer.
The argument that women who seek abortions are victims and should be protected gained popularity in the 1990s, amid a wave clinic blockades, bombings, and the murder of abortion doctor. The anti-abortion movement suffered from an image problem. Even internal polls of the movement indicated that many Americans believed it to not only be violent but also anti-woman.
The movement also faced a constitutional problem. In Planned Parenthood v. Casey 1992, the Supreme Court defied expectations by refusing complete reverse Roe v. Wade. Because a majority of justices believed that abortion access had allowed women more equal lives, the court had saved abortion rights. Anti-abortion groups decided that Roe would not be overturned unless the majority Supreme Court justices stopped believing that women need abortion to be equal. As anti-abortion leaders saw, the easiest solution was to prove that abortion actually hurt the women it was supposed help.
So the group Americans United for Life pioneered a new strategy, seeking to “shatter the myth that abortion helps women” and establish that women were victims of abortion. In 1997 Dr. John Willke, an anti-abortion obstetrician, published an updated version of his pre-Roe “Handbook on Abortion,” renaming it “Why Can’t We Love Them Both?” — referring to fetuses and women who might abort them. In 1991, the National Right to Life Committee, the nation’s largest anti-abortion organization, chose as its president Wanda Franz, a psychology professor who had started an anti-abortion research organization to study the “psychological problems suffered by some women after abortion.”
Over the past decade, dozens of anti-abortion legislations were passed in the United States under the protection of women-protective arguments. In major Supreme Court opinions such as Gonzales v. Carhart, 2007, and mandated counseling laws in conservative countries, there were contested claims that abortion could cause regrets or even post-traumatic stress.
Yet in December, when the Supreme Court heard oral arguments in the biggest abortion case in decades, Dobbs v. Jackson Women’s Health Organization, rationalizations about protecting women from abortion were sidelined. Lawyers for the State of Mississippi and anti-abortion groups stressed that abortion was not necessary: Women HadHowever, more equality in citizenship was not possible due to widespread abortion access. Just look at the newest Supreme Court justice, Amy Coney Barrett: She’s enjoyed tremendous professional success and had a large family. Why can’t everyone else do the same?
Abortion foes were always going to have practical reasons to stop referring to individual women as victims. One, states have already tried to prosecute women for their conduct during pregnancy. But unless states do MoreTo punish those who can get pregnant, anti-abortion laws are difficult to enforce. Women will travel outside of the state to order pills online or to avoid being punished. These women must be stopped from doing them. Conservative states will find it easier to target individual women than abortion providers or pill distributors from other countries.
Anti-abortion states must make a decision. If they want to enforce criminal abortion bans strongly, they will likely have the resources to pursue women. Missouri’s recent bills suggest which way that decision will go.
Mary Ziegler, a law professor at Florida State University and visiting professor at Harvard Law School, is the author of the forthcoming book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”
Source: NY Times
