Carol Sanger

One of the peculiarities of American abortion law is that in the days when abortion was illegal, women who had an abortion were not prosecuted for the crime. The criminal law targeted the doctors and unlicensed practitioners who performed the abortions. They were the ones arrested, tried, and sometimes convicted for knowingly procuring or performing an abortion, not the women who had knowingly hired them. Women were subpoenaed to testify as witnesses against their abortionists at trial, but with few exceptions, women didn’t do time.

Donald Trump’s remark that “there has to be some form of punishment for women who get an abortion,” though quickly retracted, raises interesting questions. Why weren’t women punished in the past and why shouldn’t they be today?

Historically, there were two reasons. First, criminal abortion laws sought to protect pregnant women from the physical harms of unsafe abortions at a time when poisons and sharp instruments were the methods of the day. This risk of injury to women was one of the reasons abortion was brought within the criminal law in the first place, and women were considered the victims, not the perpetrators. The second reason women were not prosecuted was the view that women couldn’t be held responsible for the decision. As the Supreme Court of Connecticut explained in State v. Carey in 1904, a woman who chose abortion needed “protection against her own weakness as well as the criminal lust and greed of others.”

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But times have changed, so let’s rethink Trump’s remark. Abortion, especially in the first trimester when 89% of all abortions take place, is now a safe medical procedure; it is even safer than childbirth (the relevant comparison). In addition, women are no longer considered ninnies who don’t know their own minds, especially where their own bodies are concerned. Women now read, finish school, vote and own property. Women also understand the consequences of an unwanted pregnancy to them, to their existing children (mothers account for about two-thirds of all abortions) and to their families. They know that abortion ends pregnancy, and while some may wish their circumstances were different so that they were not faced with the choice, they are very clear about the decision.

In short, women have all the mens rea, or criminal intent, any jury would need to convict. Consider how much women go through to have an abortion in a fair number of states — the humiliations, deceptions, risk of stigma and expense they are willing to endure. Many states have such things as 48-hour cooling off periods, mandatory ultrasounds (“real-time viewing" requirements) and for pregnant teenagers, hearings in court. As women well know, regulations like these provide their own sort of punishment.

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But let us return to the matter of punishing wrongdoers. If abortion again becomes illegal, an unlikely prospect but one many pro-life advocates hope will happen, it seems as a matter of basic equality that women should be held responsible for their actions. Although we often impose tougher punishment on those who sell illegal goods and services than on their customers (drug dealers versus users, for instance), we don’t generally let anyone off the hook. It is time for pro-life advocates to have the courage of their convictions and support punishing their fellow citizens — wives, daughters, mothers, teachers, colleagues, and neighbors of all ideological stripes — who decide to end an unwanted pregnancy.

The hard truth for those who would outlaw abortion is that no one really wants to see mom or sis (or the other 700,000 women who have an abortion each year) in the dock. Three in 10 women in the U.S. will have an abortion during their reproductive years, so while many people think they don’t know anyone who has had an abortion, the numbers suggest that probably isn’t the case.

But it isn’t just sympathy that makes us want to keep women out of prison. It is that after more than 40 years of legal abortion, many, many men and women have come to understand how crucial it is for women to be able to decide whether or not to have a child (or another child). The right to make that decision makes it more possible for women to plan their lives just as other citizens do. Trump has made us rethink why punishing women for exercising that right is all wrong.

Carol Sanger is the Barbara Aronstein Black Professor of Law at Columbia Law School, where she teaches a seminar onAbortion: Law in Context. Her book, The Eye of the Storm: Abortion in the 21st Century, is scheduled for publication in 2017.

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