Four years after the Supreme Court overturned Roe v. Wade, some abortion opponents are unhappy. Though 19 states have abortion bans early in pregnancy, the number of abortions has actually increased since the Dobbs decision, due in part to the availability of medication abortion. Eight states passed so-called shield laws, which protect providers from criminal or civil investigations if they prescribe abortion pills to people in states with bans, and now nearly 15,000 medication abortions per month are provided under those laws.
A faction of the anti-abortion movement argues that criminal bans for abortion providers aren’t enough. The only way to actually stop abortions in states where they’re banned, these activists argue, is to prosecute women for homicide. This faction, though small, is vocal and gaining influence. On the anniversary of Roe’s fall, a group of more than 60 conservatives shared a resolution calling on lawmakers to “remove legal immunities” for women who have abortions. They said laws to protect life from the moment of fertilization would put fertilized eggs on the same legal plane as the person carrying them.
Prosecuting abortion seekers used to be a third rail in the anti-abortion movement.
But there’s a telling aspect to the list: Of the 24 signatories who lead anti-abortion organizations, just four are women. It appears that, to get more women signatories, they had to branch out to conservative influencers, including anti-transgender activist Riley Gaines and podcast host Allie Beth Stuckey. The gender dynamics at play cannot be ignored when under this framework, pregnant women could be prosecuted for ending their pregnancies or even having a miscarriage.
Prosecuting abortion seekers used to be a third rail in the anti-abortion movement. In 2016, then-candidate Donald Trump had to backtrack after saying that “there has to be some form of punishment” for women who have abortions. Anti-abortion groups, whose endorsement Trump was seeking, condemned his comments and his campaign clarified it was providers, not patients, who should be criminalized. But now, mostly male anti-abortion accelerationists are deeply frustrated that women can still access pills and are pursuing the nuclear option.
It’s fairly ironic that anti-abortion women oppose the logical endgame of their policies. If conservative women truly believe that abortion should be banned because it is murder, it follows that abortion patients are murderers. The movement they helped build is based on patriarchy and violence and now misogynists are openly plotting how to throw women in jail — no matter how they vote.
The “equal protection” petition goes so far as to say the right to life must be protected regardless of the “location” of the human being. That’s a reference to ectopic pregnancies that implant somewhere other than the uterine lining; not only are ectopics never viable, but they can be life-threatening if not treated. Early treatment is an injection of medication that ends the pregnancy, but anti-abortion activists oppose that care in favor of forced surgery to remove the embryo or even the entire fallopian tube. They jump through logical hoops to claim this far more invasive route is morally superior because it does not directly terminate the pregnancy.
In The New York Times’ coverage of the petition, the conservatives opposed to equal protection laws were women, including the communications director of Susan B. Anthony Pro-Life America and the head of a crisis pregnancy center in Texas. While Vice President JD Vance recently suggested that he disagreed with criminal charges for women, he said it was a matter of political realities, not substance. It’s also noteworthy that Kristan Hawkins, the head of Students for Life, told the Times, “My message is, ‘not now,’ but I’m not saying ‘not ever.’” Just four years ago, Hawkins co-wrote a Fox News op-ed with the president of SBA Pro-Life America in which they said they were “emphatically” opposed to arresting women.
While the Trump administration has shown worrying openness to fetal personhood, it’s more likely that GOP-run states will try to force the issue.
Of all the mainstream anti-abortion organizations — meaning, groups that Republican members of Congress will meet — Students for Life is the most aggressive. It supports enforcing the 19th-century Comstock Act to ban mailing abortion pills and wants the Environmental Protection Agency to test water for mifepristone. It even claims that hormonal birth control causes abortions by preventing implantation of fertilized eggs, so if life legally begins at fertilization under “equal protection” bills, Hawkins’ group could then target such birth control. So it’s no surprise that Hawkins won’t say “not ever,” but it’s more telling that her current thinking is “not now.”
Importantly, advocates of “equal protection” seek to end abortion nationwide: They cite the Fourteenth Amendment as granting equal protection to all people, and they happen to believe that life begins at fertilization. These activists often refer to themselves as “abortion abolitionists,” an offensive use of the word abolition, which twists the Reconstruction-era amendments that scholars say intentionally protected bodily autonomy.
While the Trump administration has shown worrying openness to fetal personhood, it’s more likely that GOP-run states will try to force the issue.
Earlier this month, delegates at the Texas Republican Party convention voted to add to the platform that lawmakers should repeal penal code exemptions that protect women from criminal charges if they have abortions. The platform also opposes in vitro fertilization, calling it “destructive” and urging regulation to prevent “embryo discarding, eugenic practices and commodification of human life.” Texas does have a history of innovations in anti-abortion cruelty. More than nine months before the Dobbs decision, it was the first state to functionally ban abortion with a bounty hunter ban that allowed civil lawsuits against anyone who performed the procedure. Lawmakers in other states have introduced similar “prenatal equal protection” bills that would allow prosecuting women and restrictions on IVF.
None have passed — so far. But the debate over prosecuting women will remain a top issue in the anti-abortion movement. At the same time as the Texas GOP convention, the National Right to Life Committee held its 55th annual conference. NRLC President Carol Tobias said in her opening remarks that equal protection laws were problematic for many reasons, not least of which is that it’s almost impossible for healthcare providers to tell if someone is having a miscarriage or if they took abortion pills.
Tobias further suggested that if abolitionists pass such laws, “the pro-life movement will be destroyed.” She said, “I assure you, if the effort is to punish women who get an abortion—to put women in jail, and go so far as to suggest the death penalty—this country won’t just turn blue, it will be deep, dark, forever, blue.”
Meanwhile, SBA Pro-Life, the group that co-authored the 2022 op-ed with Students for Life, told the Times that its position on criminal penalties for women had not changed.
“No state pro-life law does this and that’s not changing, as not a single one of these bills has passed out of a state legislature,” spokesperson Kelsey Pritchard said.
But that’s only true until the day it isn’t.
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