Draft Law Treats Women Who Get Abortions as Murderers

Under a proposed law advancing in Louisiana, even rape survivors would be charged with homicide for terminating a pregnancy

A proposed law in Louisiana offers a glimpse of where the far right wants to take abortion law in America.

Republicans in the State Legislature this week passed out of committee, by a 7-to-2 vote, a bill that flatly treats abortion as homicide, meaning that women who get abortions could be charged with murder, along with doctors who perform abortions.

There is no exception for rape, incest or interventions to save the life of the mother.

“No compromises; no more waiting,” said Rev. Brian Gunter, who helped draft the bill.

Consider a woman with an ectopic pregnancy, which is completely non-viable; there is zero chance the fetus will survive. Meanwhile, there is a considerable risk that the woman will die.

She is rushed to the hospital to get emergency surgery to save her life, but the doctor, the woman and her family must then consider: Do they go ahead and save her life and risk being charged with murder?

A demonstration for abortion rights in 2017. Creative Commons photo.

The text of the proposed Louisiana law begins:

Section 1. This Act is known and may be cited as the "Abolition of Abortion in Louisiana Act of 2022".

Section 2. Acknowledging the sanctity of innocent human life, created in the image of God, which should be equally protected from fertilization to natural death, the legislature hereby declares that the purpose of this Act is to: (1) Fully recognize the human personhood of an unborn child at all stages of development prior to birth from the moment of fertilization. (2) Ensure the right to life and equal protection of the laws to all unborn children from the moment of fertilization by protecting them by the same laws protecting other human beings….

As Louisiana legislators worked on the draft, they didn’t amend it to become more moderate but rather to be more extreme. An early draft of the law defined a human being, for the purposes of criminal law, in part as a fetus from “fertilization and implantation”; that was changed to eliminate implantation, so the proposed law now treats a fertilized egg the same as any other Louisianan.

”Supporters of this legislation expressed no reservation about imprisoning people for exercising control of their reproduction,” the Louisiana ACLU said, adding that the bill is “barbaric.”

In some sense, the Louisiana law reflects the logical conclusion of the anti-abortion movement. If one really believes that a zygote is the same as any other person, then of course there’s no exception for rape or incest or saving the life of a mother. If a mom can’t kill her ten-year-old who is the result of a rape, then (so the argument goes) why allow her to kill a fetus for that reason?

To me, this indicates the basic flaw in the anti-abortion argument: A zygote is just not the same as a human infant. Yes, we grieve miscarriages, but not the way we grieve the loss of a child. All societies feel revulsion for murder, but most societies have accepted abortion until quickening. Neither the church nor the law in American history was concerned with such early abortions until roughly the middle of the 19th century.

In any case, if legislators want to be “pro-life,” there are plenty of ways to do that without imprisoning vulnerable women. As I’ve noted, 250,000 Americans are now dying a year from drugs and alcohol, yet only 1 in 5 get access to treatment. Improving mental health services and addiction treatment would save countless lives.

If social conservatives want to help children, how about passing the child tax credit that would reduce child poverty by half? How about backing national pre-K and child care programs? Why let your passion for being “pro-life” end at birth? Please, Republicans, if you care so much about unborn children, please also show concern for born children.

Most Americans are neither fully “pro-life” nor fully “pro-choice.” They don’t like late-term abortions or casual abortion, but they also overwhelmingly believe abortion should be legal in the case of rape, incest or the safety of the mother. Polls find people have complicated, sometimes inconsistent views on abortion, but only about 20 percent of Americans are absolutists who would never permit any abortions. The vast majority don’t want police and prosecutors going after women.

A few countries have prosecuted women for getting abortions, but the public has generally rebelled (I wrote about Portugal’s prosecutions of women in 2004). That’s why conservatives have traditionally taken the somewhat inconsistent view that abortion is murder but that women getting abortions should not be prosecuted. Now, in Louisiana, legislators are pushing for this law in a way that is more consistent but also monstrous.

Defining human life as beginning at fertilization raises all kinds of issues that Louisiana officials probably haven’t thought through:

• *In vitro fertilization will be illegal, and disposal of unused embryos will be multiple murder.

• Median life expectancy in Louisiana will be negative. That’s because most estimates have been that about three-quarters of fertilized eggs do not survive. One study in 2017 cast doubt on such figures but still estimated that 40 to 60 percent of zygotes are never born. If half of zygotes are naturally expelled, should we really be treating them the same as, say, teenagers?

• A woman’s period becomes a potential crime scene, because it may contain what the Louisiana law regards as human remains. Medical examiners investigate suspicious human deaths, so in Louisiana, will they be subpoenaing and examining period blood?

• If a parent leaves a child in a hot car and the child dies, that is manslaughter. Will a pregnant woman be charged with manslaughter if she works out and has a miscarriage?

• Will women be charged with attempted murder for using I.U.D.s for birth control? While I.U.D.’s mostly work by preventing fertilization, they can also prevent implantation of a fertilized egg – which, under the Louisiana law, is murder.

• Should the Louisiana Tourist Board warn women to have I.U.D.’s removed before setting foot in Louisiana, or risk being charged with crimes?

• Police investigators could subpoena OB/GYN medical records to track down all women in Louisiana with I.U.D.’s, or subpoena cell phone location data to track down all women who have visited an abortion clinic in other states and then traveled to Louisiana.

• Consider a situation in which a sex trafficker kidnaps a 13-year-old girl and repeatedly rapes her. The girl escapes but finds herself pregnant, and her parents help her get an abortion. She and her parents are caught and face homicide charges, while the rapist faces lesser charges. Does anyone think that is just?

Now, I don’t actually think that these things will happen. I suspect that Louisiana lawmakers will tone down the law, courts will block it, or prosecutors will be reluctant to charge women with murder. Voters would be outraged, and Republican candidates will be hurt across the country.

Take my state of Oregon as an example, as I know something about the governor’s race here. Voters in Oregon are deeply upset about the direction of the state, and Republicans this November have their best chance in a long time of winning the governor’s race. But the prospect of the Supreme Court overturning Roe v. Wade is likely to dim any Republican hopes of winning Oregon. Voters may be upset with Democratic management of homelessness and public safety, but they don’t want to empower an extremist G.O.P. that acts like the Taliban and charges women with murder for getting abortions.

I hope the Supreme Court justices who initially backed Justice Alito’s position will look at what’s underway in Louisiana. Do the justices really want that for America? Do they want to give license to extremists to rob women of dignity and choice? Do they want really women on trial for murder for ending a pregnancy caused by a rapist?