Mary Ziegler is the Stearns Weaver Miller Professor of Law at Florida State University College of Law.

Protesters gather before the Supreme Court to rally for abortion access in Texas. (Photo by Bill O’Leary/The Washington Post)

 

This week, Donald Trump stumbled upon the one position on abortion that almost everyone can hate: He endorsed not only criminal bans on abortion but also punishment for women who choose to terminate a pregnancy.

“There has to be some form of punishment,” Trump told MSNBC’s Chris Matthews during a Wednesday town hall. He quickly retracted his statement, but the backlash from all corners against his comment deserves some attention. If the antiabortion movement believes abortion is murder, why does almost no one want to punish women who terminate their pregnancies?

The answer can be found in the messy history of criminal punishment and abortion. Whether abortion has been legal or illegal, Americans have long been reluctant to send women to jail for having one.

By the mid-19th century, most states had passed laws that made it a crime to perform — but not always to receive — an abortion. The penalty varied, but providers usually did not face homicide charges unless a woman died during the procedure. Before the Supreme Court legalized abortion in 1973, at least six states made it a crime for women to solicit an abortion. A handful had laws that could treat women as criminal co-conspirators, and 20 made it possible to charge women as accomplices. In practice, though, women were almost never imprisoned for choosing abortion.

Ida Lafferty, a 19-year old girl from Norwich, Conn., experienced the pre-Roe v. Wade system firsthand early in the last century. When Lafferty learned she was pregnant, she hoped her lover, Michael Carey, would marry her. Instead, he brought her to the Highland Hotel, where one Mr. Beebe unsuccessfully tried to terminate her pregnancy. Prosecutors eventually brought charges against Carey, and the trial unfolded in newspapers throughout 1903 and 1904. The courts considered whether Lafferty was an accomplice, but the question came up only when judges debated the credibility of her testimony against Carey. The Connecticut Supreme Court emphasized that no one could have prosecuted her. “The public policy which underlies this legislation,” the court explained, “is … the … protection [of the woman] against her own weakness as well as the criminal lust and greed of others.”

In the years immediately following Roe, the antiabortion movement mostly set aside the question of punishing women, and focused on other ways to reduce the practice. Interest in the issue peaked again in the late 1980s, when many thought the Supreme Court was ready to overturn Roe. Abortion-rights groups claimed that women would face criminal charges if the opposition got its way. After all, in the late 1980s, Operation Rescue, a radical group that tried to blockade clinics, popularized the idea that if abortion was murder, then those opposed to it should act that way. The mainstream antiabortion movement had also expanded fetal rights, backing the prosecutions of pregnant women who abused drugs or otherwise put pregnancies at risk. If abortion opponents supported the arrest and prosecution of a pregnant woman in one context for one act deemed harmful to her fetus, then why not another?

Nonetheless, mainstream antiabortion groups maintained and continue to maintain that women are themselves victims of a predatory abortion industry, and thus should not be punished for seeking or having abortions. Indeed, in the early 1990s, the antiabortion movement put greater emphasis on laws that purport to protect women. “The [movement’s] focus on the unborn child neglects . . . the mother,” Mary Ellen Jensen, a public-relations specialist at Americans United for Life explained at the time. “Communicating greater concern for the woman . . . must be one of [our] objectives.” Abortion providers, on the other hand, were (and continue to be) the targets of most antiabortion activists’ penalizing policies.

This strategy — insisting on punishing providers in the name of protecting victimized women — gave rise to the clinic regulations currently before the Supreme Court. Whole Women’s Health v. Hellerstedt involves a Texas law that requires abortion providers to have admitting privileges at a hospital and dictates that all clinics comply with state regulations governing ambulatory surgical centers. The arguments in the case demonstrate clearly that those on both sides now use strategies that rely on a pro-woman, not punitive, logic. The abortion providers challenging the Texas law told the court that it was “an unnecessary health regulation” that harmed women by increasing relatively dangerous late-term and self-induced abortions. In its defense, Texas invoked the specter of Kermit Gosnell, a Philadelphia clinic operator convicted of murder and famous for running an unsafe facility. Wasn’t it the case, lawyers for the state asked, that Texas had an interest in “protecting patient health … by screening out individuals like Gosnell?

Hellerstedt is the latest indication that the antiabortion movement has taken on a decidedly pro-woman rhetorical stance, with little room for Trump-like musings about punishment. Yet some onlookers are still skeptical of the movement’s overwhelming opposition to punitive measures for women who have abortions, wondering how one could simultaneously believe that abortion is murder and that it’s wrong to oppose punishing women for terminating pregnancies. The answer to that conundrum, I think, has always been strategic and ideological. Strategically, antiabortion leaders have long understood that it was unwise to call for punishing women. Showing that antiabortion activists care about women has always been a crucial step in undermining support for Roe. As one pamphlet from the 1990s explained: “Once average citizens realize that women are being hurt by abortion, they will begin to question why we allow abortion at all.”

But the answer goes beyond strategy. Many who oppose abortion think that few women would terminate a pregnancy if they knew what actually happened to an unborn child, or what fetuses actually look like and are capable of in the womb. As Princeton professor Robert P. George argued in First Things magazine in 1996, “it is legitimate to take into account that the moral and intellectual weaknesses that make people willing to consider or perform abortions are themselves in part a consequence of our laws and institutions.” But those who support abortion rights find this position offensive and patronizing, tantamount to arguing that women are incapable of understanding basic medical science. Americans also disagree on whether it is possible to ban most abortions without penalizing women. They may not be jailed, but women forced to carry an unwanted pregnancy to term can still be said to be punishedas could those allowed to face the emotional consequences of killing an unborn child.

There won’t be any agreement on these questions any time soon, but it is worth remembering that unlike Ida Lafferty, women today are sometimes prosecuted for illegal abortions. Jennie Linn McCormack, an Idaho woman, is just one example: In 2012, McCormack faced criminal charges for violating the state’s 20-week abortion ban after she purchased the abortifacient drug RU 486 online. A federal court later held that the Idaho law was unconstitutional, but it seems unlikely that McCormack will be the last to face abortion-related charges. Thus the seemingly unanimous view that women should never be punished for having abortions still seems, like the abortion debate itself, fraught with ambiguities and apparent inconsistencies. Moving forward, whether or not women are penalized for having abortions may be less a question of legal responses to abortion itself, and more a matter of laws like the ones McCormack faced in Idaho, which aim to regulate the methods used to perform abortions. Either way, Trump’s briefly held view that women be punished for seeking or having abortions seems unlikely to make a comeback anytime soon.

Read more:

Five myths about abortion rights

I never knew of a mom who’d had an abortion. Until I became one.

How a new generation of activists is trying to make abortion normal