Under the Rug II

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abortion, criminal justice, Republican Party

The story thus far — in the last post, we learned that Americans opposed to legal abortion have wildly unrealistic notions about what might happen if abortions became illegal. That means it’s up to us in the reality biz to face some facts.

And one of the facts we need to face is that if abortion becomes illegal women who abort will very likely face legal prosecution for it — possibly even homicide charges — in spite of what the Fetus People claim.

Allegedly the recently passed South Dakota abortion ban provides only for the punishment of abortion providers, not the women who abort. From the law:

Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.

Any violation of this section is a Class 5 felony.

What if a woman uses or employs an instrument or procedure upon herself? Wouldn’t that be a violation?

In the last post I mentioned a couple of young women in Colombia who aborted by taking an ulcer medication. They were arrested after being treated in a hospital emergency room for bleeding. Under the SD statute as I read it, whoever sold them the ulcer medication was liable, but it’s not clear to me that the young women wouldn’t have been liable also, since they medicated themselves. Perhaps someone with a legal background could comment on that.

But here’s another wrinkle: In Monday’s Houston Chronicle, Lynn Paltrow and Charon Asetoyer argue that

If the unborn are legal persons, as numerous South Dakota laws assert, then a pregnant woman who has an abortion can be prosecuted as a murderer under already existing homicide laws.

In other words, just because the abortion law itself doesn’t provide a legal liability for the mother doesn’t mean she wouldn’t be liable under another statute.

Farfetched? Not at all.

Prosecutors all over the country have been experimenting with this approach for years. In South Carolina, Regina McKnight is serving a 12-year sentence for homicide by child abuse. Why? Because she suffered an unintentional stillbirth. The prosecutors said she caused the stillbirth by using cocaine, yet, they did not charge her with having an illegal abortion — a crime that in South Carolina has a three-year sentence. Rather, they charged and convicted her of homicide — a crime with a 20- year sentence. They obtained this conviction in spite of evidence that McKnight’s stillbirth was caused by an infection.

Thus far, South Carolina is the only state whose courts have upheld the legitimacy of such prosecutions. But in fact, women in states across the country, including South Dakota, have already been arrested as child abusers or murderers — without any new legislation authorizing such arrests. In Oklahoma, Teresa Hernandez is sitting in jail on first-degree murder charges for having suffered an unintentional stillbirth. In Utah, a woman was charged with murder based on the claim that she caused a stillbirth by refusing to have a C-section earlier in her pregnancy.

If women are now being arrested as murderers for having suffered unintentional stillbirths, one should assume that in South Dakota’s post-Roe world intentional abortions would be punished just as seriously.

Yesterday in Slate William Saletan pointed out that the South Dakota law goes to great length to define a fertilized ovum as an “unborn human being.” Be warned.

Nicholas Kristof’s New York Times column of April 7, 2004 (via Planned Parenthood of the Inland Northwest) provides a glimpse of abortion law enforcement in Portugal.

To understand what might happen in America if President Bush gets his way with the Supreme Court, consider recent events in Portugal.

Seven women were tried this year in the northern Portuguese fishing community of Aveiro for getting abortions. They were prosecuted — facing three-year prison sentences — along with 10 ”accomplices,” including husbands, boyfriends, parents and a taxi driver who had taken a pregnant woman to a clinic.

The police staked out gynecological clinics and investigated those who emerged looking as if they might have had abortions because they looked particularly pale, weak or upset. At the trial, the most intimate aspects of their gynecological history were revealed.

Think that can’t happen here? Remember a year ago, when the attorney general of Kansas subpoenaed abortion clinics for patients’ medical records? The Red State Chastity Police do not have much in the way of respect for privacy.

Kristof continues,

This was the second such mass abortion trial lately in Portugal. The previous one involved 42 defendants, including a girl who had been 16 at the time of the alleged abortion.

Both trials ended in acquittals, except for a nurse who was sentenced to eight and a half years in prison for performing abortions. …

… Portugal offers a couple of sobering lessons for Americans who, like Mr. Bush, aim to overturn Roe v. Wade.

The first is that abortion laws are very difficult to enforce in a world as mobile as ours. Some 20,000 Portuguese women still get abortions each year, mostly by crossing the border into Spain. In the U.S., where an overturn of Roe v. Wade would probably mean bans on abortion only in a patchwork of Bible Belt states, pregnant women would travel to places like New York, California and Illinois for their abortions.

The second is that if states did criminalize abortion, they would face a backlash as the public focus shifted from the fetus to the woman. ”The fundamentalists have lost the debate” in Portugal, said Helena Pinto, president of UMAR, a Portuguese abortion rights group. ”Now the debate has shifted to the rights of women. Do we want to live in a country where women can be in jail for abortion?”

“There’s a growing sense that while abortion may be wrong, criminalization is worse,” Kristof writes. Let’s hope we don’t have to learn that lesson the hard way.

Update: See also Dr. Atrios about an abortion ban advocate who refused to answer a simple question about punishment for the mother who aborts.

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12 Comments

  1. Bonnie  •  Mar 8, 2006 @2:18 pm

    That’s why I believe that if abortion is made illegal, it must apply to all parties involved–which would include the father. After all, there have been no immaculate conceptions in the last 100 years. If the men know that their rights will be affected, it will never happen.

  2. maha  •  Mar 8, 2006 @2:24 pm

    If the men know that their rights will be affected, it will never happen.

    Damn straight.

  3. Bruce Baugh  •  Mar 8, 2006 @3:14 pm

    Another thing that defenders of abortion and privacy rights must keep emphasizing: the current anti-abortion movement has no intention of leaving it to the states to decide. The moment Roe v. Wade is overturned, there’ll be federal legislation overriding all local laws, just as there was with medical marijuana. They use state law now only because they must; when they can make it national, they will.

  4. Rick  •  Mar 8, 2006 @3:19 pm

    I sometimes wonder if there isn’t some type of backwards strategy here to regain control of the three branches of government by letting things get so out of hand that it is a looong time before people vote rethug again…

  5. Meph  •  Mar 8, 2006 @4:46 pm

    Even if the law as written only applied to the doctor, the woman could be prosecuted for conspiring with the doctor to violate the law, as a few minutes of research (as well as common sense) suggests. See S.D. Codified Laws § 22-3-8, the revelant text of which reads:

    “If two or more persons conspire. . . to commit any offense against the state of South Dakota [which includes any criminal offense]. . . , and one or more of the parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be guilty as follows:
    “(1) If the conspiracy was to commit a felony, each party is guilty of a classified felony which is one classification less severe than the felony to be committed, but in no case shall the punishment for conspiracy to commit a felony be less than a Class 6 felony. If the conspiracy was to commit a felony which has not been classified, the principal felony shall be presumed to be classified in the class set forth in § 22-6-1 which matches the maximum imprisonment authorized for that felony; provided, that when the maximum imprisonment authorized for an unclassified felony falls between two classifications, the principal felony shall be presumed to be classified in the less severe class”

  6. renate  •  Mar 8, 2006 @6:06 pm

    Portugal is predominately catholic, so is Ireland. There is a canadien movie called “The Magdalena Sisters” , it is about a convent where the fallen women were imprisoned, the story is based on the real life of about 8 young women. This treatment of women went on well in to the 80s. in Ireland. It is all about punishment.

    Just recently the NYT run a story about women in american prisons giving birth while in shackles. Also a long time ago C-sections were performed without womens permission just so the infant could be baptised, which was more important than the life of the mother.

    True that does not happen today, but the pro-lifers show the same disregard for women., or is it just hate of women? The violation of women by man happens on a daily bases.
    Only pregnant women get punished for having drug addictions because it could harm the fetus. Even if the judges are overturned later it does happen.

  7. linnen  •  Mar 8, 2006 @6:08 pm

    But causing a miscarriage by the way of ‘spousal abuse’ is not on that list I see.

  8. linnen  •  Mar 8, 2006 @6:11 pm

    If this has been submitted already, my apologies.

    “The Only Moral Abortion is My Abortion” (h/t The Sideshow)

  9. Donna  •  Mar 8, 2006 @6:29 pm

    Prediction: In due course, the Supreme Court will strike down this South Dakota law. As Saletan states in his article….the SD law’s section 3 loophole [it is ok to kill the unborn in the first five or so days after fertilization] exactly discredits the premise put forth in its other sections.
    but meanwhile…..lots of folks getting their buttons pushed will focus [despairingly or gleefully] on this issue to the probable neglect of election year issues which the repugs would like to keep off the front burner.

  10. Theophrastus Bombastus von Hoehenheim den Sidste  •  Mar 8, 2006 @9:03 pm

    That’s about the size of it.

    The primary result of these laws will be the deaths of women.

    Real, feeling, actual, non-hypothetical, living, thinking, breathing women with friends and brothers and lovers and husbands and fathers.

  11. Em  •  Mar 9, 2006 @8:13 pm

    I just got done laughing at the silly women who didn’t realize that people *really* got abortions – then I read about the women charged with murder for bearing stillborn children. I honestly did not know that that occurred. I feel nauseated. I have just spent three and a half years in college, and have taken a much broader cross-section of courses than a lot of people I know who yet consider themselves to be getting a “broad liberal arts education, but I am still missing huge pieces of knowledge about things that affect me directly. I am starting to feel that I need to put my life on hold and take several years off to learn about our country’s legal system and exactly how it is being twisted.

  12. giordano bruno  •  Mar 9, 2006 @11:26 pm

    In 1978 I used to send oil of pennyroyal from Sydney to New Zealand when NZ banned abortions. A woman in NZ knew the dosage which would procure an abortion (I dont). It was interesting living in Sydney and seeing various women friends from NZ flying in to get a legal job done.

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