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Antiabortion forces split over bills to prosecute those who get procedure

Louisiana state Rep. Danny McCormick (R) last week in Baton Rouge. He introduced a bill this year to charge people who have abortions with murder. (Hillary Scheinuk/Advocate/AP)

Soon after a Louisiana House committee approved the Abolition of Abortion in Louisiana Act of 2022, the associate director of the state’s largest antiabortion group decided to speak out against the bill.

Yes, Angie Thomas wants her state to outlaw abortion. She has spent 20 years trying to counsel women out of having the procedure. But to her, H.B. 813, aimed at punishing people who have abortions by charging them with homicide, wasn’t the right way. Thomas believes the women who have abortions aren’t criminals — they’re victims.

“This bill is self-defeating,” Thomas’s organization, Louisiana Right to Life, tweeted this month. “This is NOT what it means to be pro-life.”

Immediately, some of Thomas’s fellow antiabortion activists turned on her. A few accused the nonprofit group of being complicit with murder, and others suggested Thomas and her colleagues wanted abortion to remain legal so they could keep their jobs.

That rift among the ranks of antiabortion activists grew out of long-standing differences of opinion over the most effective way to outlaw abortion. But in the weeks since someone leaked a draft Supreme Court opinion that would overturn Roe v. Wade, those arguments have been taking place more publicly, with legislators and advocates preparing for a post-Roe future.

States pour millions into abortion access

Thomas’s position is one antiabortion activists across the country have long held. The National Right to Life Committee denounced the criminalization of women as early as 1989, and that group and representatives from 70 other antiabortion organizations published an open letter last week condemning legislation that punishes women. But as the Supreme Court moves closer to potentially overturning Roe v. Wade — a final decision could come out anytime before early July — activists say they need a new tactic. Abortions increasingly are administered by pill, outside clinics, and as states prepare to ban the procedure, fights such as the one that played out in Louisiana this month are only the beginning.

Casting abortion as harmful to women

When states began outlawing abortion in the 19th century, few wanted to criminalize patients, according to Mary Ziegler, a professor at the University of California at Davis School of Law whose book “Abortion and the Law in America: Roe v. Wade to the Present” charts the history of abortion fights. Instead, antiabortion activists pushed authorities to go after doctors and men who urged their partners to have abortions.

When the Supreme Court legalized abortion through its Roe decision, antiabortion activists largely left women out of their arguments. Instead, they talked about the unborn babies they hoped to save. Many protested outside clinics with supersize posters that showed fetuses at various stages of gestation. The most ardent among them harassed women, bombed clinics and attacked doctors.

As their tactics turned increasingly aggressive, the public began to see antiabortion activists as anti-woman, Ziegler said.

By the 1980s, abortion rights groups such as NARAL increasingly fought to maintain legal abortion by casting the issue as one of women’s rights. A woman, they argued, should be able to make decisions for her own body without government intervention.

Jack Willke, the longtime president of National Right to Life, later wrote in his book “Why Can’t We Love Them Both” that he found his opponents’ tactic “clever, good, effective.”

“They thought we were violent, that we shot abortionists, that we burned down clinics, and, furthermore, we weren’t compassionate to women,” Willke wrote. “Everything we touched was colored by that same ‘We weren’t compassionate to women.’ Everything.”

If those on the antiabortion side were going to win, Willke decided in the late 1980s, they needed to “brag” about how much they loved women. He and his wife, Barbara, traveled the country and told people that women who considered abortion often lived in hard circumstances and deserved as much compassion as their unborn children did.

In the 1990s, that message began to crystallize into a nationwide strategy, Ziegler said, after the Supreme Court affirmed the right to abortion in Planned Parenthood v. Casey. The court’s decision largely rested on the idea that abortion access had granted women more equality.

Over the next three decades, antiabortion activists reframed their arguments to suggest that abortion hurts women.

“I know some women will object to this, and they will hate it, but we do see women as the second victim in an abortion,” Carol Tobias, current president of National Right to Life, said in an interview. “What we have seen over the past 50 years is that a lot of women are pressured into the abortion by a boyfriend, husband, parents, friends, telling her that she has to do it, that it’s her only option. We have seen a lot of women with post-abortion trauma. I’ve talked to women who have cried buckets of tears because they wish they could live that day over again. Certainly, some women know what they’re doing and they’re very happy about it, but there are just too many that feel like they had no choice.”

That mind-set swayed lawmakers. In 2005, South Dakota legislators used the testimony of nearly 2,000 women who’d had abortions as evidence to outlaw the procedure. According to the South Dakota Task Force to Study Abortion, the women were misled or coerced into having abortions and many were “stunned by their grief.” South Dakota passed five laws restricting abortion that year, including a trigger ban that will go into effect if Roe falls. Under that law, doctors who perform abortions can be charged with a felony. The patients cannot.

‘We have a responsibility to end it’

In 2016, then-presidential candidate Donald Trump suggested women should face “some form of punishment” for having abortions. His campaign quickly backed off that stance, but since then a dozen states, including Texas and Idaho, have considered legislation to prosecute people who have abortions, according to the Foundation to Abolish Abortion. None have made it into law, but in April, Texas authorities arrested a 26-year-old on murder charges for what they said was a “self-induced abortion.” A district attorney dropped the charges.

Trump’s off-the-cuff abortion position moves closer to reality

When a Louisiana state representative introduced a bill this year to charge people who have abortions with murder, some activists said the legislation was not necessary. Louisiana already has a trigger law to ban abortions, and if Roe falls, the state’s three abortion clinics will shutter, and doctors who offer the procedure will face jail.

But that may not be enough, some antiabortion activists argue. Authorities will not be able to prosecute the doctors who prescribe pills for medical abortions, Ziegler said, “because that person, more often than not, is going to be not in a place like Louisiana. They’re going to be in New York or California or the Netherlands. And so the people who thought it was okay to punish patients all along are now starting to say: ‘Well, what do you really want us to do in that situation? Do you want us to just not do anything?’”

The Louisiana bill’s sponsor, state Rep. Danny McCormick (R), is an oilman who once chain-sawed a mask in the name of bodily “liberty.” He has declined to speak with reporters about his legislation, but in a House hearing last week, he explained his motivation.

“Abortion is murder,” McCormick said. “As lawmakers, we have a responsibility to end it.”

In early May, a House committee approved McCormick’s bill 7 to 2. But as the legislation neared a floor vote, Thomas, the associate director of Louisiana Right to Life, said she felt that it did more harm than good. She has found that many who seek abortions are poor and uninsured. Thomas considers herself a feminist, and she had gone into this legislative session hoping to secure more support for pregnant women.

“I understand that people look at the moral evil of abortion and say it’s inherently wrong no matter what,” Thomas said. “But anyone who has worked directly with women in the pregnancy realm understands that women are victims with this as well. Just because we believe that life begins in the womb doesn’t mean that we don’t care about the mother.”

Last week, a few hours before Louisiana legislators met to vote on McCormick’s bill, representatives from the 70 antiabortion organizations released a letter affirming Thomas’s position. That afternoon, McCormick’s colleagues voted to gut the provisions in his bill that would have punished patients.

McCormick noted that some of those who voted against him had supported him before the letter came out. Eventually, he suggested, they would rejoin him.

“The political winds are blowing and it won’t be addressed today,” McCormick said, then he removed his legislation from the calendar.

Roe v. Wade and abortion access in America

Roe v. Wade overturned: The Supreme Court has struck down Roe v. Wade, which for nearly 50 years has protected the right to abortion. Read the full decision here.

What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.

State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.

How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.