What’s Missing in the Alabama Human Life Protection Act?

Posted in: Reproductive Law

Last week, the governor of the State of Alabama signed into law a bill that prohibits all abortions except those necessary to protect against a serious health risk to the pregnant woman. Critics have, understandably, focused on the tremendous breadth of the law, which treats one-day-old embryos as the moral equals of newborn babies.

Yet one could question the law from another perspective. If the bill’s sponsors really regard abortion of even the earliest embryos as unqualified murder, then why isn’t the Alabama law broader? Why is there an exception for the health of the mother? Why are women exempt from punishment? And why is the penalty for doctors so severe? In this column, I will explore some implications of the inconsistencies we find at the edges of what appears to be the most principled anti-abortion/pro-life bill currently on the scene.

The Alabama Law

The legislation coming out of Alabama classifies abortion and attempted abortion as felonies, no matter how early along they take place and regardless of whether the pregnancy resulted from consensual sex or from rape or incest. The only exception to the blanket prohibition is the case in which continuing the pregnancy would threaten the health of the mother.

Other similar but less extreme legislation criminalizes abortions that post-date the detection of a fetal heartbeat, at about six weeks, or those that happen after 20 weeks, when sponsors have claimed that a fetus begins to feel sensations like pain. Such proposed laws are very direct about the fact that they are compromising against their own preferences. To attract the desired number of supporters, the advocates surrender some of their principles.

It appears, however, that Alabama surrendered nothing. It prohibits all abortions, all except those needed to save the mother’s health. That is not a compromise, or is it?

A Hidden Compromise

It is a compromise, in several ways. The first is that in non-pregnancy situations, one of two co-equal individuals may not kill the other one even if doing so is necessary to save the first one’s life. If I need my neighbor’s heart to save my own life or health, the law does not permit me to kill him for his heart. And perhaps more relevantly, if I occupy a lifeboat with another person, and the other person is heavy and is sinking the boat, I may not throw him overboard to preserve my own life or health.

By analogy, my embryo or fetus and I are equally entitled to live inside my body and use it for sustenance. When the continuing presence of the embryo or fetus threatens my life or health, I have no right to kick the embryo or fetus out of the environment that we share and that each of us needs to survive. If my body is a lifeboat, then, I must allow the other passenger—the embryo or fetus—to remain there unmolested, even if her presence threatens my life, as it might on a lifeboat.

The right to terminate a pregnancy in the narrow case of a threat to life or health accordingly exposes a tension or conflict between the claim that that abortion is just like any other murder and the life or health exception to the prohibition.

The Alabama law compromises in another respect as well. Though the penalty for violating may be extremely harsh—up to 99 years imprisonment—only the doctor and not the woman terminating would be serving that sentence. This is the model of pro-life bills in the United States; it is always the provider and not the pregnant patient who must undergo punishment. Other countries, like El Salvador, punish the woman for her abortion as well. And women in the U.S. have in fact sometimes faced punishment for their own abortions or non-abortions, as in the case of a woman who attempted suicide and, in the process, might have killed her fetus.

What does it mean, then, when a U.S. bill or law holds the doctor but not the pregnant woman responsible for the death of a fetus in abortion? It means that something about the woman’s position or situation diminishes or eliminates her criminal responsibility for killing her embryo or fetus. As some organizations put it, the woman is as much a victim of abortion as the baby is. But why would that be?

Some have suggested that if one believes women become irrational when pregnant, then it might be a perceived diminished capacity that accounts for her exemption from criminal responsibility. The problem with this hypothesis is that pregnant abortion providers receive no exemption from the law. It may, alternatively, be that the U.S. public would never accept the routine incarceration of women who undergo abortions. But here too, the question is why not? If people believe that abortion is murder, then why wouldn’t the same people want to punish the person who solicits and pays for the murder of her own child?

The refusal to criminalize and incarcerate the pregnant woman who has an abortion demonstrates at least a rudimentary understanding of the unique way in which pregnancy burdens her. It suggests agreement with the proposition that a woman and her embryo or fetus are not co-equal occupants of a life boat but that the lifeboat is hers and the embryo or fetus is the “taker” who is appropriating something that belongs to its mother. That understanding of pregnancy provides the foundation for at least some versions of the right to abortion. It is therefore in tension with the pro-life vision behind most of the Alabama law.

Setting out a potential sentence of 99 years for the doctor further reinforces the perceived distinction between killing a separate individual and having an abortion. Imagine that I ask you to kill someone, pay you a sum for the deed, and then arrange for the victim to be brought to your workplace to allow you to kill him. We are co-conspirators to murder in that case, and if you carry it out, we are both guilty of murder. Would it be just for you to be convicted and sentenced to 99 years imprisonment while I remain exempt from prosecution because the victim is my son? It would be morally incoherent.

Once again, though, if we take into account the unique situation in which a pregnant woman finds herself, we might well have compassion for her and give her a pass because of what is being asked of her in demanding that she carry the pregnancy to term. The problem is that if we had this compassion, we would not be trying to cut off her access to abortion. By doing so, we effectively and forcibly impose the very burden that she tries to escape through abortion, an escape that we understand well enough—even when there is no threat to life or health—that we never punish her for it.

I do not expect Alabama lawmakers to revisit, based on my analysis, their decision to ban almost all abortions. It is nonetheless useful to understand the fault lines of even the most extreme-seeming legislation. We can then ask those who support such laws what they make of the life-and-health-of-the-mother exception and why the woman who gets the abortion is exempt from criminal responsibility for it. Once we know the small spaces in which consensus might be possible, we can begin an honest conversation in which we try to persuade one another and listen to each other as well.

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