In their Dobbs dissent, Justices Breyer, Sotomayor, and Kagan write: “Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion.”
The dissenters fail to mention two important facts. First, as Clarke Forsythe of Americans United for Life once wrote for an NRO symposium, states prosecuted abortionists, not women seeking or undergoing abortions, under pre-Roe abortion laws (emphasis added):
Contrary to the pervasive myth that women were prosecuted for abortion before Roe, consistent state abortion policy for a century before Roe was not to prosecute women. Abortionists were the exclusive target of the law. That was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of abortion, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.
In fact, the irony is that in nearly all of the reported court cases explicitly addressing the issue of whether a woman was an accomplice to her abortion, it was the abortionist (not the prosecutor) who pushed the courts to treat the woman as an accomplice, for the obvious purpose of undermining the state’s criminal case against the abortionist (including the abortionist Ruth Barnett when Oregon last prosecuted her in 1968).
Leslie Reagan, in her 1997 book When Abortion Was a Crime, admits that states did not prosecute women for their abortions and concedes that the purpose behind that law was not to degrade women but to protect them.
The wisdom of not prosecuting women was based on extensive practical law enforcement experience in many states, over many years. It will certainly be influential with prosecutors and state policy makers when Roe is overturned, and that should be the policy of legislators who are interested in the effective enforcement of abortion law.
Second, all major pro-life groups today oppose laws that would apply civil or criminal penalties to women seeking or obtaining abortions. On May 12, after the leak of the Dobbs opinion, the leaders of 70 pro-life groups — including the National Right to Life Committee, Susan B. Anthony Pro-Life America, and the March for Life — published the following letter to state legislators:
As national and state pro-life organizations, representing tens of millions of pro-life men, women, and children across the country, let us be clear: We state unequivocally that any measure seeking to criminalize or punish women is not pro-life and we stand firmly opposed to such efforts.
It is true that a small number of extremists want abortion laws that would punish women, and it is important for pro-life leaders and elected officials to remain vigilant about opposing such efforts for both prudential and principled reasons. There was some confusion back in May about whether a proposed law in Louisiana could be used to punish women, but, as the AP reported, the Louisiana House voted “65–26 to totally revamp the legislation, eliminating the criminal penalties,” and the sponsor of the bill pulled it from consideration.
This post has been emended since its initial publication.