Our elation at the humiliating defeat of Donald Trump is tempered by our disgust at the contemptible and hypocritical appointment of the extreme Catholic Amy Coney Barrett to the Supreme Court by the Republican-controlled Senate, only weeks before the election. During the theater of the absurd that passed for confirmation hearings, Democrats missed the opportunity to engage in some thought experiments that would have highlighted Judge Barrett’s radically conservative views. The most significant of these concerns abortion.
There is, of course, some doubt that even this reactionary court—where not one but two justices have now been illegitimately placed—would be brazen enough to overturn abortion rights. But Barrett herself has made it abundantly clear, despite some equivocations, that she believes Roe v. Wade was improperly decided. A fruitful line of inquiry would then have been: Okay, what would be the ramifications of such an overturning? Specifically, what punishment would women face if Roe v. Wade were declared unconstitutional?
Judge Barrett would no doubt have declared that it is not up to her, but to state legislatures, to determine what punishment (if any) should be inflicted upon women who terminate their pregnancies. However, as a sitting judge on the Supreme Court, she might not be able to evade responsibility entirely.
It is understandable that this issue makes even anti-abortionists uncomfortable—and it should. Many of them indulge in the patronizing fantasy that women are helpless victims compelled by husbands, boyfriends, or other nefarious parties to have abortions they really don’t want. But this comforting view would quickly be mugged by reality.
It is surprising—and dismaying—how little attention anti-abortionists pay to the actual person carrying the fetus they are so determined to preserve. Consider the case of Robert P. George, a Princeton professor who appears to be regarded as a “conservative Catholic intellectual” (I shall, for the sake of argument, assume that this designation is not an oxymoron). In his book Conscience and Its Enemies (2013), he lambastes us godless liberals for advocating abortion, same-sex marriage, and other atrocities. But what he doesn’t say is more suggestive than what he does say. In all his laborious and repetitious discussions of abortion, one reasonably significant figure in the whole debate is noticeably absent. George devotes not one sentence to the moral, legal, or even biological role of the pregnant mother. It is as if the fetus magically develops on its own with no input from the mother carrying it. One typical sentence states that the embryo, “if left to itself in a suitable environment” (my emphasis), will develop normally. So now the pregnant mother is reduced to a mere “environment”! This fanatical focus on the “personhood” or “humanity” of the fetus, and the implicit denial of the humanity of the mother, is typical of the misogyny at the heart of the anti-abortion movement.
Consider the scenario in a world run by Robert P. George. Here is a living, breathing woman who for years or decades has been making independent moral decisions for herself and, perhaps, for other members of her family. But the moment she becomes pregnant, she suddenly loses her moral autonomy—in effect, her “personhood”—and becomes nothing more than an incubator and a ward of the state. Conversely, if the fetus is a “person” from the moment of conception, what follows? Should we give it a Social Security number? Should the parents receive a child tax credit from the moment of conception? Shall a pregnant mother, in filling out a census form, say that there is already one extra person in the household?
And, in the most horrible of all prospects to anti-abortionists, what if this uppity mother decides to terminate her pregnancy in one way or another? If Roe v. Wade is overturned, at a minimum there will be some states where abortion will suddenly become illegal. In that case, I can envision at least two scenarios in which women seeking abortions in states that prohibit them take action that would presumably be illegal and criminal:
- Abortion-rights groups could set up a kind of underground railroad whereby women in certain states are transported to states that still allow abortion (this is on the assumption that the Supreme Court does not institute a nationwide prohibition of abortion—a remote but not impossible prospect).
- It takes little effort to secure abortifacient medications via the internet, and many women would no doubt do so, as they do now.
Even if states banned both these actions, enforcement would be very difficult. But no doubt some women would be detected having illegal abortions, and so the issue of punishment would loom large.
Given that anti-abortionist rhetoric equates abortion with murder, it is not unreasonable to envision certain state legislatures decreeing harsh punishments—up to and including the death penalty—for the crime. Indeed, there is no doubt that such states would be quite ruthless in punishing doctors or clinics for any role they might play in the matter. Not long ago, the state of Texas attempted to punish doctors with up to ninety-nine years in jail for assisting in illegal abortions.
And if these same states, in a spasm of squeamishness, decree little or no punishment for women who terminate pregnancies, even (or especially) if they do so on their own without the aid of doctors or clinics, then that would surely contravene the very prohibition the states have instituted. Is there any parallel in criminal law whereby someone who commits a criminal act is not punished at all? I don’t know of one. What would be the deterrent value in such leniency? Surely the banning of abortion would then be a dead letter.
I have no solution to offer to these quandaries, and I doubt that Judge Barrett and other anti-abortionists have one either.