In the new, post-Roe v. Wade world, for some anti-abortion forces, it is not enough to remove constitutional protection for abortion. They want to make criminals of women who seek abortions.
As if that weren’t enough, Republican legislators in four Southern states have proposed legislation that would make abortion a capital offense. Were such legislation to be passed, it would mark an unprecedented escalation of the right wing’s war on women.
As is true throughout America’s death penalty system, race and class will play a large role in who would be prosecuted, sentenced, and executed for getting an abortion.
National Public Radio quotes Dana Sussman, acting executive director of National Advocates for Pregnant Women, as saying that criminalization of abortion already falls disproportionately on “‘poor people, people of color, young people. Anyone who is experiencing a mental health crisis, anyone who has a substance-use disorder, those are the people that are gonna be most vulnerable to suspicion and the specter of law enforcement when they experience a pregnancy loss.”
The dangerous extremism of the death-penalty-for-abortion proposals is reflected in the fact that in at least one state’s bill there is no exception for rape or incest. Welcome to the world that some radical conservatives want to create.
At a time when the death penalty is under intense scrutiny for its injustice, unreliability, and cruelty, they want to double down on it. In their dystopian vision, women who once had a constitutional right to abortion would now be put to death for exercising that right.
To cite one example, Arkansas House Bill 1174 says that “all unborn children should be protected under the state homicide laws as all other persons.” In addition to the woman who aborts a fetus, friends, partners, medical providers, and anyone else who helped her decide to end a pregnancy would be liable for the death penalty as accomplices under the Arkansas bill.
The anti-abortion movement has never had a plausible claim to being “pro-life,” but the Republican legislators who are pushing death penalty plans are stretching hypocrisy to withering heights.
Make no mistake about the danger ahead. This is an organized effort.
Though none of these bills seem likely to pass in the near term, they are part of an effort to normalize the idea that a fetus is a person protected by state homicide laws so that, sometime in the future, women who exercise their right to make their own family decisions might find themselves on murder dockets.
It’s the boiling frog theory. Gradually raise the heat on the pot and the amphibian won’t jump out before the water’s bubbling and it’s too late. Those who believe in reproductive freedom need to jump on this latest escalating attack on it.
Like the Supreme Court majority that overturned Roe v. Wade last June, the death penalty-for-abortion legislators are bucking strong international trends. Even Catholic South American countries like Colombia and Mexico have decriminalized abortion. Over the last three decades, close to 60 nations have liberalized their abortion laws. Only one of the world’s 195 countries, El Salvador, treats abortion as murder.
Bad company to keep. Anti-women, anti-reproductive rights legislators in southern states seem to be feeding their religious frenzy and desire for vengeance against those who believe differently.
Of course there’s that old “eye for an eye” concept that originated in Babylon about proportional justice. Let’s put aside the fact that these elected officials are not advocating an embryo for an embryo. They purport to embrace the Judeo-Christian tradition, but its truer form is about tolerance, not revenge.
Politicians loudly proclaiming their Christianity with legislation proposing death for mothers having abortions seem to have forgotten that Jesus renounced Babylonian justice: “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you . . . [if] anyone slaps you on the right cheek, turn to them the other cheek also. And if anyone wants to sue you and take your shirt, hand over your coat as well.”
Perhaps it’s too much to expect politicians seeking to stir up their base to follow the Bible. Pragmatically, however, they might want to notice that last June’s Supreme Court decision in Dobbs was the “driving force” that energized majorities of young people, women, and men who believe in reproductive freedom to cast their votes against Republicans in 2022.
Even in red states like Kansas and Kentucky, and in states like Michigan that went for Trump in 2016, post-Dobbs ballot measures that protected abortion won, and ballot measures meant to end it lost.
Maybe that wouldn’t be so in Arkansas, Texas, Kentucky, and South Carolina, the states where these new death-penalty-for-abortion bills have been introduced. But their proponents don’t seem to care about the 2024 political energy they may be handing Democrats in other parts of the country.
Such blindness to national political implications is also suggested by the extreme measures in Oklahoma, South Carolina, and Texas: The bills there also explicitly include abortion by medication. (A pill for a pill?) More than half the abortions nationwide occur by pharmaceuticals—at least pending the ruling in a fraught Texas case where right-wing groups have asked an anti-abortionist federal judge to invalidate a 22-year-old FDA decision that the pill is safe.
If that happens, the threat of legislation to make swallowing a pill murder may accelerate Democratic voters’ run to the polls nationwide in 2024. It may lead independents to steer clear of the fanatics for whom the end of Roe was just the beginning of the next stage of the anti-abortion crusade.
These Southern state legislators may think that imposing the death penalty will deter abortions. Think again. Legal restrictions on abortions don’t stop them but only multiply the numbers of unsafe, back-alley endings to pregnancy for women who can’t afford a baby or aren’t ready to have one.
Moreover, there is no reliable evidence in the familiar context of one person killing another that the death penalty really is a deterrent. Nearly two of three Americans doubt that it is.
In the end, as the Brennan Center for Justice rightly notes, “Criminalizing abortion and pregnancy upends lives, breaks up families, and disrupts entire communities.” And the idea of piling a possible death sentence on top of the painful choice to end a pregnancy is not just hypocritical and destructive, it is as cruel as it is unusual.