The furor over Donald Trump’s comments this week about punishing women who have abortions raised an interesting question. Trump asserted that, if abortion were once again made a crime, women who have abortions should be punished. Trump was simply being logical. It is standard practice under the criminal law that a person who commits a crime, who conspires with others to commit a crime, or who pays others to commit a crime, is guilty of a crime. In simplest form, if X pays Y to kill Z, X is guilty of a crime. Trump was just extending that common-sense rule to the context of abortion.
That pro-choice groups vehemently attacked Trump’s assertion was predictable and understandable, because they are committed to the view that women have a fundamental personal and constitutional right to terminate an unwanted pregnancy. What was puzzling, though, is that he was also vehemently attacked by the anti-abortion forces and by members of the Christian Right.
This is puzzling because if abortion is murder of a human life then it logically follows, as Trump suggested, that the woman is guilty of a crime when she is complicit in murdering her unborn child. Why then did the anti-abortion forces attack Trump?
One possible explanation for the seeming inconsistency among the anti-abortion forces is that they are simply political hypocrites. They condemn abortion, but not to the extent of having the courage or consistency of their convictions. But there is another, and even more disturbing, explanation. This alternative explanation was evident in Trump’s revised position, in which he declared that the woman who has an abortion should not be punished because she “is a victim.” Ted Cruz echoed this same explanation, as did Dr. Ben Carson, who explained: “The woman is the victim. She’s traumatized emotionally and in many other ways that’s problematic. In terms of who should be punished, that women has already been punished.”
The point, in other words, is that the woman who has an abortion should not be punished because she has suffered enough. But would they say this about a woman who pays someone to kill her four-month-old child? I rather doubt it. To understand where this rather perverse notion comes from, a little history may be enlightening.
In England in the centuries before the founding of the American nation, abortion was legal as long as it took place before quickening (when the mother first feels fetal movement in her uterus), which typically occurs at around eighteen weeks, or roughly halfway through a pregnancy. The prevailing view was that the fetus was not “ensouled” until quickening. As the great English scholar William Blackstone observed in 1765, human life “begins in contemplation of law” only after the “infant is able to stir” in the woman’s womb.
After the Revolution, the American states universally adopted this position, and abortion was legal in the United States at any time prior to quickening. Through the middle of the Nineteenth Century, abortifacients were widely available from mail-order firms and pharmacists, several generally available books offered instruction on how to terminate a pregnancy, and daily newspapers regularly ran ads for products that promised to “cure” pregnancy – a euphemism for terminating a pregnancy. By the 1870s, approximately twenty percent of all pregnancies were purposefully terminated.
But then the moralists moved in. During the evangelical fervor of the Second Great Awakening in the 1830s, Protestant understandings of the fetus began to change. Abandoning the traditional view, evangelicals now preached that a separate and distinct life came into being at the instant of conception.
This shift in religious perspective was reinforced by the conclusion of some medical professionals, based partly on religion and partly on science, that life begins at conception. In 1839, for example, Dr. Hugh Lenox Hodge published a pamphlet in which he confidently asserted that embryos could think and could perceive right and wrong.
The most influential voice in this transformation was that of the Boston gynecologist Horatio Storer, who published a highly influential essay in 1865 titled Why Not? A Book for Every Woman. In this essay, Storer made essentially two arguments against abortion. First, he maintained that “the fetus in utero is alive from the very moment of conception,” and that it therefore followed that for a woman “to extinguish the first spark of life is a crime of the same nature, both against our Maker and society, as to destroy an infant, a child, or a man.”
Second, Storer argued that abortion is “a thousand times more dangerous” to the woman than childbirth. He maintained that many women who have an abortion “become confirmed invalids, perhaps for life,” and develop “serious and often fatal organic disease.” Some die, either immediately or later, as a result of “moral shock from the thought of the crime,” whereas others, he declared, are driven to insanity.
Storer emphatically rejected the proposition that the woman should be able to decide this question for herself, noting that if she were given this responsibility “her decision . . . would be . . . warped by personal considerations,” particularly because, during pregnancy, “woman’s mind is prone to depression, and, indeed, to temporary actual derangement, under the stimulus of uterine excitement.”
Influenced by the combination of religious and pseudo-medical positions, by the dawn of the Twentieth Century, every state had enacted legislation absolutely prohibiting abortion from the very moment of conception unless a doctor certified that it was necessary to save the life of the woman. Despite these laws, as many as two million women still had abortions each year, and almost a third of all pregnancies ended in abortion. But because of these laws, these abortions now had to be performed illegally, in less safe circumstances, and by less reliable practitioners than in the past. The era of the “back-alley” abortion had been born.
The point of this bit of history is that it explains why the anti-abortion forces insist that, even if abortion were illegal, women who have abortions should not be criminally punished. It is because, as Ben Carson, echoing Horatio Storer, explained, when a woman has an abortion, she is a victim. She is so “traumatized emotionally” that there is no need for any further punishment.
This view of the anti-abortion forces is horrifically paternalistic, insulting and demeaning to women. It is based on the perverted premise that every woman who chooses to have an abortion is making a decision based inescapably on “temporary mental derangement” and will suffer dire emotional, psychological, and sexual trauma for the rest of her life.
The best answer to this patronizing way of thinking was offered by Justice Ruth Bader Ginsburg in her dissenting opinion in the Supreme Court’s 2006 decision in Gonzales v. Carhart, in which the Court, in a five-to-four, decision, upheld the constitutionality of a law forbidding so-called partial-birth abortion. In his majority opinion, Justice Anthony Kennedy suggested, without any evidence, that women who have abortions have a fragile emotional state, come to regret their choices, and suffer from “severe depression and loss of esteem.”
A furious Justice Ginsburg responded that this was “an antiabortion shibboleth” which had no support in reality. “This way of thinking,” Ginsburg charged, “reflects ancient notions about women’s place in the family–ideas that have long been discredited.” Ginsburg concluded that, though the majority “may regard women’s feelings on the matter as self-evident,” the Court has repeatedly confirmed over the years that “the destiny of the woman must be shaped by her own conception of her spiritual imperatives and her place in society.”
What is most offensive about the Trump, Cruz, Carson, anti-abortion contention that women who have abortions are “victims” is that it is profoundly dishonest and insulting to the dignity and integrity of women. They should be ashamed.
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