« Will Federalism (and Conflicts of Law Doctrine) Deregulate Abortion? | Main | What we mean by "let the states decide" »

Sunday, December 05, 2021

Will state officials actually enforce their new restrictions on abortion against women? Some Evidence from 2016

In my last blog post, I suggested that state officials might be reluctant to enforce their post-Roe/Casey Abortion restrictions against pregnant women as opposed to abortion clinics. I slathered this suggestion with appropriate qualifications, noting that “I am, after all, just a law prawf, not a political scientist” and that “[m]y prediction is worth what you paid for it,” because “I repeat that I am not an expert here.” I nevertheless suggested that there was evidence that anti-abortion activists and politicians do not want to enforce anti-abortion laws against pregnant women because

[t]he optics of such enforcement actions simply do not fit with the preferred narrative of the pro-life movement, which has been focused on the alleged villainy of abortion clinics and the alleged victimhood for their clients. Pro-life rhetoric pitches itself in a pro-woman key, arguing that those women seeking abortions are victims exploited by “abortion mills” who later regret their decision to terminate their pregnancies. I humbly submit that nothing could be more devastating to this rhetorical stance than photos of women in orange jumpsuits, awaiting punishment for crossing state lines with the immoral purpose of ending a pregnancy.
I linked to a 2011 Ph.D dissertation by Alex Trumpy, an Ohio State sociology grad student, that documents “Pro-Woman Framing in the Pro-Life Movement” to support that claim about pro-life rhetoric. (I have not read the whole thing, but chapter 4, on feminist framing in the pro-life movement, is nicely supported IMHO by survey data and individual interviews of movement leaders).

My claim about anti-abortion activists’ political incentives to prosecute abortion clinics rather than pregnant women, even thus qualified and supported, attracted a bit of skepticism. Professor Sepper wrote on twitter that “those of us who have been following abortion politics more closely would not find [such a theory of anti-abortion politicians’ incentives] reassuring,” because “you're imagining that antis pretend they are motivated by women's health and fetal wellbeing. that's gone. it's over.”

Maybe Professor Sepper is correct. There is, however, more recent evidence that anti-abortion activists still “pretend they are motivated by woman’s health” and are extremely reluctant to admit publicly that they would enforce restrictions on abortion against women. When Donald Trump remarked to Chris Matthews during a 2016 “town meeting” that bans on abortions would require women to be “punished” for obtaining an abortion, there was an immediate outcry from anti-abortion activists so intense that it forced Trump to retract the statement. Using rhetoric straight out of Trumpy’s dissertation, Marjorie Dannenfelser, president of Susan B. Anthony List, declared, “let us be clear: punishment is solely for the abortionist who profits off of the destruction of one life and the grave wounding of another.”

I would like very much to hear contrary evidence from Professor Sepper or others who have been following abortion politics more closely than I have that these statements do not reflect anti-abortion activists’ actual political calculations. IMHO Dannenfelser and many others really seem to believe that enforcing abortion restrictions against pregnant women would be a huge political liability. That belief does not guarantee that such laws would not be enforced against women if Roe/Casey were reversed. But maybe (assuming I am correct in my admittedly lay assessment) one should exploit the belief to undermine anti-abortion laws’ enforcement rather than deny, without much evidence, that the belief really exists. [Update: Parts of Professor Trumpy’s dissertation have been published in Sociological Spectrum as Woman vs. Fetus: Frame Transformation and Intramovement Dynamics in the Pro-Life Movement]

Posted by Rick Hills on December 5, 2021 at 08:34 AM | Permalink


"do not believe that the moral status of a fetus/unborn child is not equivalent to the moral status of the newborn"

True enough (and the balance is somewhat different since an infant is totally separate from the woman) though it very well can be a matter of degree.

It is NO prosecution or token prosecution (one originalism article on the question argued 19th Century practice around the time of the 14A being ratified -- if that is something that concerns a person -- included many states that did criminalize abortions, but the penalty was much lower early in the pregnancy) that is particularly telling.

You can, e.g., prosecute a woman for having an abortion & treat it as a misdemeanor or a felony with limited actual punishment. That's wrong [need I say "obviously"?] but that is you know more than not doing it at all.

I would add here that the case of Doe v. Bolton is rather interesting since the state law allowed some abortions in the usual "special circumstances." The state advocate did reference the rights of the embryo/fetus w/o saying it required no abortions being allowed at all.

Posted by: Joe | Dec 6, 2021 12:30:42 PM

Why the reluctance to prosecute or otherwise sanction women who have abortions? Surely there would not be a similar reluctance to punish infanticide. It seems to me that this suggests that even pro-life advocates do not believe that the moral status of a fetus/unborn child is not equivalent to the moral status of the newborn.

Larry Rosenthal

Posted by: Larry Rosenthal | Dec 6, 2021 11:20:01 AM

The question of whether the patient or practitioner will be prosecuted is especially relevant since, if Roe/Casey protections are completely eliminated and states then enact complete bans, the supply of abortion pills sent from overseas is likely to increase dramatically. This is a prediction from a Mother Jones piece, but I've read others speculating on this:

"Abortion by mail is the future. With or without an unfavorable Supreme Court ruling, the black market is here to stay. International online pill providers are difficult targets for law enforcement. And the demand for convenient, safe, and private abortion is unlikely to wane, whether or not in-clinic abortion gets harder to come by. “The train has left the station with medication abortion,” says Jill Adams, executive director of If/When/How, a reproductive justice legal advocacy group. “There’s no going back.”


Posted by: SS | Dec 5, 2021 4:39:57 PM

Howard, you might be correct: No one can know for sure. But I see significant political disincentives to bringing prosecutions against any woman, Black or white, for leaving (or seeking to leave) one state to obtain an abortion in another state where that abortion is legal.

Large numbers of educated, middle-class women obtain abortions: A 2017 AJPH study showed that 178k of the abortions of the roughly 926k abortions performed in 2014 year were obtained by women with a college degree (https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2017.304042 ). That’s almost a quarter of all abortions. Prosecution of women for obtaining abortions, therefore, would be a direct threat to this very large and politically influential constituency. I guess I would not presume that some sort of implicit racism would dampen those middle-class women’s empathy for Black defendants (but I might be naive).

Professor Sepper argued that the the prosecutions brought against women for violating fetal protection laws, fetal drug laws, and maternal conduct laws suggest that state officials would not be deterred by prospective backlash from bringing prosecutions against women for seeking abortions in states where such abortions are legal. But it seems to me that the former prosecutions are very different from the latter. Prosecuting women for inflicting harm on fetuses that those women intend to carry to term is gruesome and cruel, as Michelle Goodwin powerfully shows in her book, “Policing the Womb.” Even under Roe’s trimester framework, however, the state would seem to have an interest in preventing harm to a prospective baby that a woman intends to carry to term. The right way to prevent such harm IMO is to give educational, medical, and nutritional assistance to women who suffer from drug addiction or other health problems. The criminal prosecutions described by Goodwin are sickening, unjust, and ineffective, but no one could reasonably deny that *some* policy was needed to protect prospective babies from chemical injury where women intend to carry a fetus to term.

An inattentive public, unaware of the details of these cases, might therefore sadly lack empathy for such defendants. (Implicit racial bias might also play a role here). By contrast, an abortion that terminates a pregnancy by definition presents no risk that any child will be born with severe disabilities. So I just do not see why the public tolerance of one sort of prosecution would suggest public support for arresting women crossing state lines to get an abortion in another state where it is legal.

Posted by: Rick Hills | Dec 5, 2021 1:41:41 PM

It makes perfect sense to go after providers as a matter of scale here.

Much has already been written citing various instances where women (these days, we would carefully say "persons") have been prosecuted, including for miscarriages or harms to children they give birth to. Rachel Roth around twenty years ago wrote a book on the costs on women when fetal rights are in place. So, I wish not to totally handwave individual harms.

If abortion was not a constitutional right, such cases will increase somewhat, I'd think logically. People who help people obtain abortion pills illegally etc. also might get prosecuted somehow.

I welcome the research but am quite willing to grant this will result in a limited number of actual prosecutions. A limited number of bad cases will arise that will be highlighted. As noted in a comment, practice here would suggest it will be discriminatorily applied.

Still, the problem at large will be denial of access.

Posted by: Joe | Dec 5, 2021 12:41:00 PM

Rick: Like so much else, I expect this will vary by state and there will be clear distinctions across socio-economic and racial/ethnic lines. I expect Black women in South Carolina and Mississippi to be prosecuted for all sorts of things. I would not expect a middle-class Dallas housewife to be prosecuted for anything.

Posted by: Howard Wasserman | Dec 5, 2021 12:21:06 PM

Your perception (that they wouldn't hunt down pregnant women) is reasonable. No doubt. Although, has nothing to do with that assertion that you are not an expert, not a political scientist etc....

Yet, something else here:

In your previous and current post, you haven't formed or indicated at first place, any nexus between Roe and that simple assertion that they don't and wouldn't chase or go after pregnant women. Simply, they didn't so far one may argue, due or thanks to Roe, as the controlling and binding precedent. Yet:

One Roe is reversed, why wouldn't they? You don't explain it, in essential and ideological terms:

Simply, once Roe is reversed, they may feel confident to do it. For, new precedent has come to town. And:

In ideological terms, once clinics are out of the game, who is left then ? Pregnant women. Why not ? Finally, they do believe, and sincerely so, that the right balance, is the total one:

That the right of the fetus for life, takes over, the right of one woman for privacy, intimacy, and autonomy on their body and soul.

So, beyond legal complications stated by me in your previous post, politically, and ideologically, things may change all around.

Finally, under Roe, they have reached so far in Texas, to let ordinary citizens to sue clinics. Without any nexus to the state and its official. That was an amazing precedent!

It is not so high, just to sigh.


Posted by: El Roam | Dec 5, 2021 11:13:06 AM

Post a comment