Earlier this year, Louisiana Republicans debated a deeply controversial piece of legislation: a bill to classify abortion as homicide, making anyone who had abortions murderers in the eyes of the state.
“This is a thorny political question,” Republican State Rep. Danny McCormick, the bill’s sponsor, argued to his colleagues. “But we all know that it is actually very simple. Abortion is murder, and as lawmakers, we have a responsibility to end it.”
McCormick’s bill met fierce opposition from within his own party and Louisiana’s two leading anti-abortion groups. His opponents asserted those who undergo the procedure, too, are victims of abortion and shouldn’t be held legally liable. This idea has been a pillar of the anti-abortion movement for more than 30 years but is being tested anew.
Now that performing an abortion is a crime in several states following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health, this controversial debate that took place in Louisiana is expected to rip across the country as states and local prosecutors reexamine their existing laws and even debate new bills to criminalize getting an abortion.
Despite the long-held refrain that “abortion is murder,” people have never been widely prosecuted for having abortions in the United States, and most anti-abortion groups maintain patients who undergo an abortion should not be considered criminals.
“We believe that women are victims of Roe, too. They’ve been fed a narrative that abortion is a solution to their problems,” Sarah Zagorski, communications director for Louisiana Right to Life, told Grid. “This is a decision that’s made under a lot of distress, so criminalizing abortion isn’t a stance we would ever support.”
In the nearly 50 years since the Roe decision, the anti-abortion movement has held these competing views: the idea that “abortion is murder” and the notion that “women are victims” who should be treated with compassion.
These two fundamentally different views have slowly been on a collision course, said Jennifer Holland, author of “Tiny You: A Western History of the Anti-Abortion Movement.”
“If you’re calling something murder, and you’ve created many ways for people to imagine it as murder, it doesn’t make any legal sense for the person who pays for, or does that act, to have no legal consequences,” Holland said.
The history behind “abortion is murder”
Historically, the United States hasn’t treated abortion as murder. States began banning abortion in the mid-19th century — but women were generally not convicted of a crime if they were caught having an illegal abortion. Prosecutors focused chiefly on abortion providers, including midwives, and in some cases other people who helped the abortion process.
When abortion was legalized in 1973 after Roe v. Wade, a growing group of people — and, crucially, many evangelical Christians — joined the anti-abortion cause. A host of new groups sprang up, popularizing the use of images of fetuses or ultrasounds to make the case that they should have rights.
The most famous of such groups was Operation Rescue, founded by activist Randall Terry, who frequently implored to members, “If you think abortion is murder, then act like it’s murder.” Terry believed in physically stopping abortions from taking place, and his group mounted protests and blockades outside abortion clinics. Violence against abortion clinics increased, and there were 110 cases of anti-abortion arson, firebombing or bombing between 1977 and 1988, a study in the American Journal of Obstetrics and Gynecology found. At one point, more than 2,600 protesters were arrested in Wichita, Kansas, during a “Summer of Mercy” protest against local abortion clinics.
These hard-line tactics garnered attention, but they didn’t necessarily move public opinion. As of 1990, 29 percent of Republicans believed abortion should be “legal under any circumstances,” according to polling by Gallup, up from 18 percent in 1975. And in 1992, following the Planned Parenthood v. Casey decision that allowed for restrictions on abortion clinics, pro-choice Democrats had a winning year at the polls: Bill Clinton made clear he thought abortion should be legal on the campaign trail, and a wave of women who favored abortion rights were elected to the Senate in what became known as the “Year of the Woman.”
Jack Willke, a high-profile anti-abortion activist, decided the movement needed to rebrand.
The public “felt that pro-life people were not compassionate to women and that we were only ‘fetus lovers’ who abandoned the mother after the birth,” Willke later wrote. “We had to convince the public that we were compassionate to women. Accordingly, we test marketed variations of this theme.”
The result was “Love them Both,” a message for anti-abortion activists put forward by Willke and others that held that women who get abortions are victims of a bad system. The concept also tried to embrace women’s agency, arguing that women were being coerced into abortions and can be liberated by the anti-abortion movement.
“We must insist that the proper frame for the abortion issue is not women’s rights versus the unborn’s rights, but rather women’s and children’s rights versus the schemes of exploiters and the profits of the abortion industry,” wrote author David C. Reardon, who argued for the approach.
The result was two opposing messages emerging from the anti-abortion movement.
“It’s this very weird tension. There’s a growing rise of fetal rights, and personhood, which necessarily criminalizes women’s behavior,” said Alisa Von Hagel, abortion scholar and political science professor at the University of Wisconsin-Superior. “But in public, activists use this approach to frame the movement as a fuzzy, warm movement.”
Though the phrase “Love them Both” didn’t become a permanent slogan, the concept has stuck. When Donald Trump claimed on the campaign trail in 2016 that “there has to be some form of punishment” for a someone who has an abortion, for example, he was chided by anti-abortion groups.
“Unborn children and their mothers are victims in an abortion,” National Right to Life President Carol Tobias said in a statement. “In adopting statutes prohibiting the performance of abortions, National Right to Life has long opposed the imposition of penalties on the woman on whom an abortion is attempted or performed.”
Opposition to abortion among Republicans has solidified over the last three decades. Only 10 percent agree abortion should be “legal under any” circumstances in 2022. Support for abortion among Democrats meanwhile surged: Just 34 percent of Democrats believed abortion should be “legal under any” circumstances in 1990, but today 57 percent of Democrats feel it should be.
Recent arrests revive a debate about criminalizing abortion patients
In recent years, there have been a series of arrests and debates that refocus on the question of who should be at fault for an abortion.
In addition to the Louisiana legislature’s debate, high-profile arrests of two women have brought the question to the fore. Earlier this year, 26-year-old Texan Lizelle Herrera was arrested for murder “by self-induced abortion.” The indictment said she “intentionally and knowingly cause[d] the death of an individual.” The district attorney later dropped the charges.
A similar scenario played out in Alabama in 2019, when 27-year-old Marshae Jones was charged with manslaughter after she had a miscarriage after she was shot while arguing with another woman. She was indicted, but the prosecutor in the case later dropped the charges.
Major abortion groups have been clear they do not support such prosecutions. In May, more than 70 anti-abortion groups including Susan B. Anthony Pro-Life America and National Right to Life published an open letter saying that “any measure seeking to criminalize or punish women is not pro-life and we stand firmly opposed to such efforts.”
Holding patients or funders accountable for an abortion is new territory
Another fast-growing legislative trend would also expand the pool of people who can potentially be punished for an abortion to include anyone who was involved.
Texas’ S.B. 8 law allows citizens to sue other people who “aid or abet” an abortion. Legal experts are unsure if that means anyone who has helped a patient seeking an abortion — like an Uber driver who gives a patient a ride — will be sued in Texas, and the ban is largely untested because of legal challenges and abortion clinics shutting down in the state. Idaho and Oklahoma have passed laws that mirror S.B. 8, and lawmakers in several other states have introduced versions of the bill. Missouri also debated a bill earlier this year that would criminalize helping someone get an abortion.
States will soon have to grapple with issues of personhood and liability, Von Hagel said. Some states explicitly offer legal protections for pregnant patients saying they can’t be prosecuted for abuse and neglect if they have an abortion. Other states don’t carve out similar protections, opening a door for individual prosecutors to test the system.
“If there’s a gung-ho prosecutor who wants to charge someone who was using drugs [and had a miscarriage], or attempted a self-abortion, they can do so,” Von Hagel said.
As voters consider the new legal landscape in a post-Roe America, Republicans will have to weigh desire from within their own party to adopt policies supported by a vocal minority of their base like personhood with the potential backlash that the anti-abortion movement has witnessed in the past when it is viewed as too extreme, Von Hagel added.
“Strategically,” he said, “it’s not going to be popular for anti-abortion activists to say women should be thrown in jail for something that had been legal for the last 50 years.”
Thanks to Lillian Barkley for copy editing this article.