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Mainstream anti-abortion activists have long insisted they don’t want to punish people who get abortions. Now, that claim is being put to the test.
Although many states are only a few weeks into their first state legislative sessions since Roe v. Wade was overturned, legislators in Arkansas and Oklahoma have already introduced bills that would punish abortion patients. In Alabama, the state’s attorney general initially said he could use a state law to punish people for ending their pregnancies, then tried to walk it back.
These kinds of tactics are forcing anti-abortion activists to confront a long-simmering tension within their movement: What are they supposed to do with people who get abortions? Typically, abortion restrictions target providers, not patients. Within the anti-abortion movement, patients are treated like victims who have been bamboozled into ending their pregnancies by the predatory “abortion industry.” But now that Roe is gone and states are proposing policies to legally treat fetuses like people, that may not hold water for much longer.
“I think there are some people, and probably a fairly large group of people, for whom women’s innocence is conditional and they could be persuaded that it’s not real,” said Mary Ziegler, a professor at the University of California, Davis, law school who studies the legal history of reproduction.
Speakers at the March for Life and National Pro-Life Summit in Washington, D.C. last weekend repeatedly suggested that only a lack of knowledge keeps abortion patients from seeing the “truth” about abortion, and that they can be converted to the anti-abortion cause. This is part of the thinking behind “sidewalk counseling,” the practice of standing outside abortion clinics to convince patients not to go inside, and behind crisis pregnancy centers, facilities that try to persuade people to continue their pregnancies.
“We as pro-lifers have things in the right order, right?” Lauren Muzyka, of Sidewalk Advocates for Life, told National Pro-Life Summit attendees. “God comes first, a mother puts a child before herself. So you might say the right order, the natural law order, is God, baby, mom. But a woman in crisis mode, a woman in self-preservation mode, has all of that inverted.” Muzyka suggested that attendees find out how far into a pregnancy a patient is, then give them information about a fetus’ development. “We need to do everything in our power to meet her where she’s at and love her into a decision for life.”
But “fetal personhood,” the idea that fetuses deserve the full rights and protections granted to humans who have been born—and sometimes, that a fetus’ rights trump those of the person carrying them—also lies at the heart of the anti-abortion movement’s argument that abortion is wrong. Assuming the perspective of an anti-abortion activist, Ziegler asked, “If we’re serious about personhood, how can we not punish women?”
The Arkansas bill proposes that “all unborn children should be protected under the state homicide laws,” which could lead abortion patients to be prosecuted as murderers. The Oklahoma bill, introduced by Republican state Sen. Warren Hamilton, would amend the state’s current near-total abortion ban to remove language that currently blocks prosecutors from charging “a woman with any criminal offense in the death of her own unborn child.”
This move isn’t totally unexpected from Hamilton, who in 2020 announced he would introduce a bill called, in part, the “Abolition of Abortion in Oklahoma Act,” which also banned abortion. He changed the name when he filed it in 2021, but the word “abolition” carries a unique weight within the anti-abortion world: A wing of activists who now identify as “abortion abolitionists” believe that abortion should be legally categorized as murder and that, because a fetus is a person, individuals who get abortions should be punished like murderers. (The anti-abortion movement, in general, is largely white.)
Ahead of his 2020 election, one of the major “abolitionist” groups, Free the States, endorsed Hamilton. Hamilton’s office did not immediately respond to a request for comment on his new bill.
Bills with “abolitionist” underpinnings have popped up intermittently in recent years. In 2021, a Texas legislator introduced a bill that would threaten abortion patients with the death penalty; similar legislation was also introduced in 2017 and 2019. Those bills, which proved to be PR disasters for anti-abortion activists, never advanced very far in the Texas legislature. Republicans and leaders of national anti-abortion organizations have condemned them; Catherine Glenn Foster, head of the influential organization Americans United for Life, told Vox of the 2019 Texas bill, “It’s something that I would fight back against and everyone I know in the movement would fight back against.” Hundreds of people testified at a committee hearing on the bill.
Punishing people for abortions is an incredibly unpopular position. Just 14 percent of U.S. adults say women should serve jail time if they have an illegal abortion, according to Pew Research Center. Even Republicans dislike the idea; just 21 percent think that women should be jailed. Sixteen percent of adults, though, say she should pay a fine or perform community service, while another 17 percent aren’t sure what should happen.
Men are also more likely than women to say that a woman should face a penalty for an illegal abortion.
Although abortion bans tend to punish medical providers, that idea is divisive, too: Only a quarter of U.S. adults support sending doctors and other providers to jail for performing illegal abortions, according to Pew.
However, abortion rights are also very popular. Three in five Americans believe abortion should be legal in all or most cases. Yet, thanks to years of dedicated and disciplined organizing, the anti-abortion movement successfully overturned Roe.
It’s not that there are now more abortion “abolitionists,” according to Ziegler, but those who exist are becoming better organized. They may also be set to take advantage of what Ziegler calls “the enforcement problem.” Although abortion bans are now in effect in at least 13 states, those bans are proving difficult to enforce, thanks to the availability of abortion-inducing pills online and people’s ability to travel across state lines for abortions.
Under current law, if a doctor performs an abortion on a person from a state with an abortion ban, that doctor isn’t at risk of prosecution. (One congressman from Indiana did recently say he would support legislation to stop someone from traveling out of state for an abortion in the first place.) Frustration with that loophole may lead some activists to push to punish someone, anyone, for getting an abortion—and the patient is usually the most visible target.
“Some people are saying, ‘What else are we really supposed to do?’” Ziegler said. “If the doctor or the abortion fund or whatever is in a different state or a different country and we want to stop this abortion and we don’t have a national tool, the only option left is punishing the pregnant person.”
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