It Was Always Going to Happen This Way

Conservatives are pushing to jail women for abortion and cut off access to contraception. They're just waiting for the right time.

Photo by Hédi Benyounes on Unsplash

There was no other way this was going to go.

In the most predictable turn of events of all time, some anti-abortion leaders and their supporters in the Republican party are pushing to jail women who have abortions — to treat abortion exactly as they say it is, which is murder. Other conservative states are are implementing laws that limit access to contraception.

This is not a surprise. It’s also just the beginning.

Doug Mastriano, who is running on the Republican ticket for governor of Pennsylvania, said in 2019 that women who have abortions should be prosecuted for murder. "OK, let’s go back to the basic question there," Mastriano said. "Is that a human being? Is that a little boy or girl? If it is, it deserves equal protection under the law." Should a woman who has an abortion, then, be charged with murder? “Yes,” Mastriano said.

But Mastriano is not the only Republican who supports treating women who have abortions as murderers. Here, for example, is what recently happened in Louisiana:

They were adamant that a woman who receives an abortion should receive the same criminal consequences as one who drowns her baby.

Under a bill they promoted, pregnant people could face murder charges even if they were raped or doctors determined the procedure was needed to save their own life. Doctors who attempted to help patients conceive through in-vitro fertilization, a fertility treatment used by millions of Americans, could also be locked up for destroying embryos, and certain contraception such as Plan B would be banned.

“The taking of a life is murder, and it is illegal,” state Rep. Danny McCormick told a committee of state lawmakers who considered the bill in May, right after the Supreme Court’s decision to overturn Roe v. Wade was leaked.

“No compromises, no more waiting,” Brian Gunter, the pastor who suggested McCormick be the one to introduce the legislation, told the committee.

Only four people spoke against the bill during the committee meeting— all women. They pleaded with the lawmakers to grasp the gravity of the proposed restrictions, which went farther than any state abortion law currently on the books, and warned of unintended consequences.

“We need to take a deep breath,” said Melissa Flournoy, a former state representative who runs the progressive advocacy group 10,000 Women Louisiana. She said the bill would only punish women and that there wasn’t enough responsibility being placed on men.

But in the end, only one man and one woman, an Independent and a Democrat, voted against it in committee. Seven men on the committee, all Republicans, voted in favor of the bill, moving it one step closer to becoming law.

The Louisiana bill eventually failed because of broad public uproar over this very point: The American public is not particularly enthusiastic about jailing women who have abortions.

But the anti-abortion movement is.

Major pro-life groups mostly claim that they would never put women in jail for having abortions, because those women, they say, are victims, too. But those groups do not advocate for the many women jailed by “pro-life” governments abroad, or women in the US who are jailed for acts that result in the deaths of their fetuses. If they truly believed that it was wrong, offensive, and an affront to the pro-life cause to jail women for abortions, one would expect that they would take a stand when women are jailed for having abortions; instead, they are silent. Those groups have a long, long history of lying to the public’s face. And those groups are very clear that they believe abortion is cold-blooded, pre-meditated murder.

“Republicans DO NOT want to throw doctors and women in jail,” the National Republican Senatorial Committee said a messaging memo in May. They added: “Mothers should be held harmless under the law.”

But as we know, every state that has criminalized abortion in the wake of the Dobbs decision has indeed imposed criminal penalties on doctors, including jail. Republicans do want to throw doctors in jail, and the have written that into their anti-abortion laws; Republicans are the only reason doctors are being threatened with jail time for performing abortions.

Why do we trust that Republicans will be any more honest when it comes to throwing women in jail?

It’s hard to see how they will maintain this “we won’t prosecute women” fiction for very long after abortion is broadly criminalized. If a fertilized egg is imbued with all the same rights as an infant, and if a mother who drowns her infant — or pays someone to drown her infant — is a murderer and not a victim, how is a woman who intentionally and knowingly ends the life of her embryo or fetus not a murderer, too?

The current claim is that women who have abortions are victims of predatory “abortionists,” or that women simply don’t understand what they’re doing when they end their pregnancies. But if a woman is going to great lengths to end a pregnancy in a state where it is illegal, surely she has been put on notice that her state has deemed her act to be criminal.

Perhaps the “pro-life” claim is that women fall into the category of moral children, that because of some gendered defect we are not entirely responsible for our actions — that seems to be the tack they’re taking for now. And that wouldn’t be so out of step with their general theory of female personhood: That women are a distinct category of human, who, the moment sperm fertilizes egg and before they are even pregnant, have fewer rights than a non-pregnant person and fewer rights, even, than the fertilized egg inside of them; they aren’t rendered non-persons, but rather a kind of hybrid human-incubator, entitled to some rights but not all, and in other, crucial ways, entitled to far fewer rights than the embryo, who has greater rights than a born person. Women who are not yet pregnant also fall into this category, as abortion opponents also seek to limit or wholly outlaw most modern forms of contraception, under the scientifically faulty claim that medications like the birth control pill and devices like the IUD cause abortions (they do not). So it’s not totally out there to think that the anti-abortion movement is indeed ok with putting women in a distinct moral category, both more responsible for a fertilized egg than we are for any other human being on the planet including our own born children, and also, somehow, less responsible for our actions.

In truth, though, they are staking this position only because it’s the more palatable one. And they will only continue to stake this position only as long as they believe they must.

Right now, they must. The thing with authoritarianism, though, is that people adjust to their new normal. Right now, the predictable outcomes of criminalizing abortion are novel and therefore still shocking. It is shocking when the state tries to force a ten-year-old rape victim to give birth against her will; the stories of the subsequent children in the same state who were raped and denied abortions, though, get far less attention, because this is a story we have heard before. It is shocking when women seeking treatment for miscarriages in “pro-life” states that outlaw abortion wind up losing their uteruses, or are admitted to the ICU with severe infections, or are sent home and told wait for severe infection before treatment, because their state’s anti-abortion law prevents doctors from treating them appropriately; eventually, though, those stories fade from the headlines, as they largely already have. I haven’t read any stories of doctors going to jail yet, but it will happen, and people will be outraged, until it becomes normal and then, well.

We can see how the anti-abortion movement is already getting more aggressive. In Idaho, public universities have been advised that the state’s abortion ban means that they cannot refer students for abortions or for contraception, that the health center cannot give students contraceptives including condoms for the purposes of preventing pregnancy, and that professors can’t so much as discuss contraception in class if they might be seen as “promoting” it — even though a tool that has reduced maternal mortality by a third is probably worth promoting (and strikes me as pretty damn pro-life). This is shocking and radically out of step with public opinion. It will also, eventually, be not so shocking.

The anti-abortion movement is not one unified thing. The savvier, more sophisticated players have long pushed for a slower, more careful, incremental strategy — make American women the frog in the pot, if you will, as turn up the flame carefully. The less savvy, more ideological players want to turn the stove to high and just get on with it — hope the frog doesn’t jump out, or perhaps put the lid on tightly enough that it can’t.

The question, in other words, isn’t outcome; the question is timing and approach. Do we push to treat abortion as exactly what we say it is, which is murder, which means throwing women in jail now? Or do we slowly warm up (or wear down) the American public, curtailing abortion bit by bit and normalizing ever-more-extreme encroachments into women’s lives, until putting women in jail doesn’t seem that extreme by comparison?

All of them want to boil the frog. The divide comes in how long that should take. Which is why it’s worth paying attention to the less savvy actors who are more inclined to just say what everyone else is thinking — they’ll tell you what the real endgame is. And they’re telling us it’s women who have abortions being prosecuted for murder.

xx Jill