Back when Donald Trump was just a presidential candidate, he was asked by Chris Matthews if he thought abortions should be dealt with under the law, like any other crime. He replied, “There has to be some form of punishment,” specifically saying he meant that the women who obtained abortions should be punished. After his handlers realized what he’d said, he quickly reversed himself, saying that if abortion were banned through the courts or legislation, the punishment should be reserved for “the doctor or any other person performing this illegal act upon a woman.”
Some Republicans still draw the line there, reserving any legal action over abortions to those who conduct them. When the House, in its second policy bill of this legislative session, passed an abortion measure last week, it contained language imposing criminal penalties on doctors who don’t resuscitate fetuses that are born alive during an attempted abortion procedure. (This almost never happens, for the record, and in the rare cases where it does, emergency medical care is already required. The bill is clearly designed to heighten the legal risk to doctors in the hope that they will shy away from performing abortions.)
But this don’t-punish-the-woman line is no longer unapproachable. While women already have been indirectly punished by abortion bans and other curtailments on women’s health in some states after the Supreme Court’s Dobbs ruling, Republicans are becoming more and more comfortable with direct punishment, too. The contradictions of conservative abortion policy, defining the procedure as murder but not wanting to alienate the women they consider murderers, have started to fold in on themselves.
More from David Dayen
This story begins with some strong moves by the executive branch to widen abortion access. Just after New Year’s, the Food and Drug Administration allowed mifepristone, the first drug in a two-drug sequence for safe medication abortions, to be sold at pharmacies with a prescription. Misoprostol, the second of those drugs, had already been allowed to be dispensed at pharmacies, but mifepristone was more tightly regulated and mostly needed to be obtained through certified doctors or at clinics. Medication abortions today comprise more than half of all abortion procedures in the United States.
Walgreens and CVS quickly said they would offer mifepristone in states where abortion is legal. But the Justice Department took this a step further, in a legal opinion regarding the dispensing of abortion medications through the Postal Service. The department’s Office of Legal Counsel said that these medications could be sent through the mail legally, including into red states, without violating the Comstock Act, a federal law that prevents the sending of illegal products through the mail. As long as the sender has no knowledge of any intent to use abortion medications unlawfully, they can be sent, the Office of Legal Counsel wrote. This meant that services like Aid Access that operate telehealth businesses outside the U.S. can send pills to every state.
As the Prospect has written, the ability to send mifepristone and misoprostol through the mail makes the Postal Service the nation’s largest abortion provider. This has triggered outrage among the anti-abortion forces, who are struggling to figure out how to ban the medications from coming into their states.
The question of prosecution of women splits anti-abortion coalitions when legislation is adopted.
Now, it has led one state law enforcement official to go there. Steve Marshall, the attorney general of Alabama, which has a near-total abortion ban, made clear last week that women in the state who received abortion pills at a pharmacy or through the mail could be criminally prosecuted. Alabama’s abortion law, the Human Life Protection Act, explicitly saves its criminal statutes for abortion providers and excludes patients from liability. But Marshall’s office said it would use a “chemical-endangerment” law, intended to punish women for exposing children to fumes from home-based meth labs, to prosecute those who obtain abortion medication.
District attorneys in Alabama have extended that law to prosecute women for substance abuse during pregnancy, putting women in jail for years in some cases. The Alabama law was amended in 2015 to specifically exempt women with legal prescriptions from doctors. But even though mifepristone and misoprostol are FDA-approved legal drugs available only with a prescription, Marshall still made the threat.
Marshall’s declaration was a logical extension of the Republican position on abortion. Prior to Dobbs, there were some scattered examples in red states of prosecution of women for abortion, as the Prospect wrote about in 2016. But this is an attorney general of a medium-sized state calling for prosecution of all women who use abortion medications. The intent is quite clear. Just as lawmakers and attorneys general have threatened jail time for doctors to stop them from practicing, at least one attorney general is now threatening jail time for women to stop them from deciding to get abortion medication.
The question of prosecution of women splits anti-abortion coalitions when legislation is adopted. This is when the rhetoric meets reality, especially since the Biden administration took action to expand abortion pill access. Now the anti-choice zealots’ position has taken them to criminalizing women who obtain a pill legally.
The claims of compassion for women from the anti-abortion movement do not sit well with prison terms.
Clearly, the adverse political consequences of a hard-right position on abortion haven’t been that much of a hindrance to Republicans. Despite a disappointing midterm, despite losing a state legislative seat in Virginia last week that was primarily fought over the abortion issue, the House GOP made abortion its top priority in its first week in the majority, rivaled only by allowing rich people to skip out on paying taxes.
But Marshall’s statement did send anti-abortion movement leaders backpedaling. They frequently claim that they are only interested in stopping the practitioners of abortion, and that women are mere victims. But it’s increasingly impossible to distinguish between what they call a crime and the primary individuals involved in that crime. In another context, conservatives would certainly not go after the supply of guns from manufacturers rather than the individual who shoots the gun and commits a murder. In abortion, that approach has long been flipped.
But I predict Marshall’s position will become the dominant one before long. There are going to be efforts to block websites that offer remote prescriptions for abortion medication, or find some way to take those sites and providers down. But it will be a difficult task to close off access to such websites completely. With abortion medications able to legally flow through the mail, the only prosecutable person within the jurisdiction of a red-state district attorney is the woman. This obliterates the fragile foundation on which anti-abortion leaders have positioned themselves. Those arguments were always untenable, and now we’re seeing them fail.
