Academic journal article The William and Mary Bill of Rights Journal

Some Form of Punishment: Penalizing Women for Abortion

Academic journal article The William and Mary Bill of Rights Journal

Some Form of Punishment: Penalizing Women for Abortion

Article excerpt

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 736

I. PUNISHMENT BEFORE AND AFTER ROE V. WADE. . . . . . . . . . . . . . . . . . . . . 740

A. Prosecuting Women Before Roe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 741

B. Roe v. Wade Leads to a Rethinking of Punishment and Abortion . . . . 746

II. FETAL-ABUSE LAWS AND WOMAN-PROTECTIVE ARGUMENTS: THE NEW CONTRADICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753

A. Post-Akron Strategy Carries Forward a Contradiction . . . . . . . . . . . 754

B. Child-Abuse Laws and the Rise of Woman-Protective Arguments. . . . 757

III. PROVING ABORTION-RELATED HARMS AND THE PROSECUTION OF WOMEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762

A. Pro-Lifers Try to Prove that Abortion Hurts Women. . . . . . . . . . . . . . 763

B. Gonzales, Whole Woman's Health, and the New Jurisprudence of Punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770

IV. MAKING GOOD ON THE COMMITMENT NOT TO PUNISH WOMEN . . . . . . . . 779

A. The Justifications for Punishing Pregnant Women . . . . . . . . . . . . . . . 780

B. The Futility of Punishing Pregnant Women. . . . . . . . . . . . . . . . . . . . . 782

C. Alternatives to Punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 784

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787

INTRODUCTION

In 2016, Donald Trump ignited a political firestorm when he suggested that women should receive "some form of punishment" for having abortions.1 Although he immediately backtracked, Trump's misstep launched a debate about whether women have been or should be punished for abortion.2 Pro-lifers and feminists alike denounced the idea of penalizing women.3 At the same time, Trump's comments revealed that punishing women has become far more than an abstraction.4 In 2016, Indiana resident Purvi Patel became just the most recent visible example when she was sentenced to twenty years for feticide and child neglect for inducing an abortion.5

But in spite of the furor created by Trump's comment and Patel's conviction, the history surrounding abortion and the punishment of women has remained obscure. While some historians have documented patterns of prosecution when abortion was a crime, current studies offer little insight into the aims of the pro-life legal reform movement from 1973 to the present.6 Trump's election makes the reexamination of this history both timely and significant. Are cases like Patel's rare, or would women and abortion providers face punishment if abortion were once again a crime?

Using original archival research, this Article explores the history of pro-life debates about when, whether, and why to punish women. Starting in the 1970s, movement members prioritized a fetal-protective constitutional amendment designed to maximize protection for the unborn child.7 Without directly discussing the punishment of women, movement members tried to maximize protection for the unborn child and did not rule out penalties for women who terminated their pregnancies.8 By the mid-1980s, the movement's focus had changed; in this period, pro-lifers pushed restrictions designed to undercut popular approval of abortion, including stigmatizing laws outlawing abortions chosen as a method of birth control.9 At the same time, movement leaders campaigned for the extension of homicide, child abuse, and child neglect laws to unborn children.10 This strategy included an effort to punish pregnant drug users and even women who self-induced abortions.11

Ironically, pro-lifers in the period also began more often presenting their cause as an effort to protect women, not punish them. …

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