Abortion as homicide, no exceptions to save women's lives, and the death penalty for women who have abortions

With an empowered anti-abortion movement, abortion laws are getting more extreme.

Photo by Rosalind Chang on Unsplash

It hasn’t even been a year since the Supreme Court overturned Roe v. Wade, and we’re already seeing the anti-abortion movement push laws they’d previous claimed were beyond the pale. In Tennessee, the anti-abortion movement is threatening Republican politicians with a downgraded “pro-life” rating if they sign onto a bill that would allow abortions to be performed to save a pregnant woman’s life. In Kentucky, a bill would allow prosecutors to charge women who have abortions with homicide; a proposed bill in South Carolina would give a fetus the same legal rights as you or I, which could open women up to homicide charges for abortion, which would be extension open them up to being sentenced to death for abortion. Across conservative states, laws are in place or under consideration that would punish doctors for abortion — and even “exceptions” to save a pregnant woman’s life would still allow doctors to be criminally prosecuted.

The Tennessee story is a telling one. In that state, abortion is outlawed without exception. If a pregnant woman’s life is in danger and a doctor has to perform an abortion to save her, that doctor is still presumed to have broken the law and can be prosecuted. The law then allows the doctor to present “this was a life-saving abortion” an affirmative defense — after that doctor has been charged, indicted, hauled into criminal court, potentially had their license suspended, and almost surely spent a huge sum trying to stay out of prison, because malpractice insurance doesn’t cover criminal charges.

This affirmative defense mechanism — presuming all abortions are criminal acts, and making doctors prove otherwise — is an increasingly common one in abortion bans. Legislators could simply write in exceptions for a pregnant woman’s life (or her health, or rape, or incest, or severe fetal anomaly), but in many anti-abortion states, they have chosen not to. And it’s clear why: They want doctors to hesitate before offering abortion care, even to women in acute medical distress.