Some Form of Punishment: Penalizing Women for Abortion

By Ziegler, Mary | The William and Mary Bill of Rights Journal, March 2018 | Go to article overview

Some Form of Punishment: Penalizing Women for Abortion


Ziegler, Mary, The William and Mary Bill of Rights Journal


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Some Form of Punishment: Penalizing Women for Abortion
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.