Lies, Damn Lies, and Abortion

For a long time, when people would ask me what subjects I covered as a journalist, I would jokingly say, “Criminal justice and reproductive rights — and hoping the two never intersect.” It’s not funny anymore (if it ever really was).

Opponents of reproductive rights have become emboldened, pumped up by a reconstituted, decidedly conservative U.S. Supreme Court and the appointment of a fleet of radical judges to the lower benches. Meanwhile, in a race to see who can be first to directly challenge abortion rights before the high court, their proxies in state houses across the country gleefully file legislation that can only be described as draconian.

Take Texas’s House Bill 896. Tony Tinderholt, the North Texas Republican who introduced the bill, says it “aligns” Texas statutes in a way that reaffirms that life begins at conception and eliminates the “exception” in the penal code for women who have abortions. That all sounds vaguely unexceptional until you realize that the bill would have the effect of immediately eliminating and criminalizing abortion access (he’s suggested there’s no need to wait for Roe v. Wade to be overturned), meaning that both abortion providers and women who have abortions could be charged with murder and, ultimately, sentenced to death.

Tinderholt, who has proposed this legislation before, told the Texas Observer that it was necessary in order to “force” women to be “more personally responsible” with their bodies. “Right now, they don’t make it important to be personally responsible because they know that they have a backup of, ‘oh, I can just go get an abortion,’” he elaborated. “Now, we both know that consenting adults don’t always think smartly sometimes. But consenting adults need to also consider the repercussions of the sexual relationship that they’re gonna have, which is a child.”

Not only are Tinderholt’s comments misogynistic, but they’re also laughable when you consider that in Texas — as in most other states — there is no meaningful sex education, while elected officials have worked overtime to reduce or eliminate access to low-cost birth control (not to mention the fact that abortion-as-birth-control is not a thing, despite its longevity as an anti-choice talking point).

Tinderholt’s bill was considered during a marathon committee hearing on April 8. The testimony of Jim Baxa, with West Texans for Life, was representative of the zeal with which many spoke of the need to criminally punish women for accessing safe, legal abortion care. “A woman who has committed murder should be charged with murder,” he said, while seeming to lament that, realistically, women probably wouldn’t face the death penalty because prosecutors would likely offer plea deals in exchange for testimony against the abortion provider.

A proliferation of restrictions has cast a long and intimidating state shadow over abortion care and its providers.

Though the Texas bill has zero chance of passing this year, the punitive abortion restrictions moving through statehouses and courthouses across the country aren’t necessarily designed to be followed through on, but are instead intended to send a very clear message: Even if abortion is protected, we consider it criminal and immoral, and you’d better watch your step. In the decades since Roe, a proliferation of restrictions has cast a long and intimidating state shadow over abortion care and its providers — and it works: There are now six states that have just a single abortion provider. In Texas, restrictions passed in 2013 swiftly closed nearly half the state’s clinics before they were struck down by the Supreme Court in 2016.

In Alabama, lawmakers have introduced House Bill 314, drafted with the help of the Alabama Pro-Life Coalition, which bans and criminalizes abortion (though it exempts the woman from criminal charges) beginning at roughly two weeks gestation, which, needless to say, is far earlier than a woman should ever be expected to know she is pregnant. Speaking in favor of the measure, Eric Johnston, the coalition’s attorney, demonstrated that he doesn’t even understand how sexual reproduction works. The two-week ban wouldn’t be a problem, he said, because a “man and a woman can have sex and you can take her straight into a clinic and determine an egg and sperm came together.”

In the current legislative session alone, five states have trigger bills pending that would ban abortion in the event that Roe v. Wade is overturned, while 15 states have introduced 36 bills to ban abortion at six weeks gestation — again, well before most women know they’re pregnant. A six-week ban has already passed in Kentucky, Mississippi, Ohio, and Georgia. Prior to this year, only Iowa and North Dakota had passed such a ban; both have been blocked by the courts, which is certainly where the rest are heading. (Currently, the law protects abortion access to the point of viability, generally considered to begin around 23 weeks.)

Supporters of the six-week ban have dubbed it a “heartbeat bill” because it would prohibit abortion from the point at which fetal cardiac activity is detected, a measure meant to honor the humanity of the embryo while discounting that of the woman. At their core, these bills are about power and control. Consider the example set by Mississippi. In 2018, the state passed a 15-week ban that was immediately challenged and then permanently blocked by a federal court late last year. The stinging opinion that ruled it unconstitutional blasted lawmakers for fixating on abortion rights to the exclusion of other pressing concerns — like expanding access to medical care for “women, infants, and children” and confronting the state’s staggeringly high maternal mortality rate. Legislation like this, the court wrote, is “closer to the old Mississippi — the Mississippi bent on controlling women and minorities.” The response of Mississippi lawmakers? Codify a six-week abortion ban just five months later.

Doctors can be jailed, fined, or lose their licenses even for the most inane infractions.

But while there’s little doubt that the recent spate of anti-abortion bills making their way through the legislative process and the courts are notable for their extremity, they hardly represent a truly new attack on reproductive rights. To date, more than 1,200 restrictions on abortion access have been passed — one-third of those in the last eight years alone. They run the gamut from targeted restrictions on abortion providers, or TRAP laws —  like those that require abortion doctors to have hospital admitting privileges, which are wholly unnecessary in the context of abortion care — to bans on abortion at 20 weeks, or on the basis of sex or a fetal diagnosis of Down syndrome. There are laws that would ban the safest and most common procedure for later-term abortion. There are elaborate reporting requirements and informed consent laws that force doctors to lie to their patients. And nearly all of these restrictions have some criminal or civil penalties attached to them; doctors can be jailed, fined, or lose their licenses even for the most inane infractions.

In Oklahoma, lawmakers have passed a bill that would require doctors to tell patients that medication abortion can be reversed via an essentially untested hormone regimen; a failure to do so would be a felony offense. In Missouri, a doctor can be charged with a misdemeanor and face jail time for violating any of a litany of abortion restrictions, including administrative violations, like missing a 45-day window for turning in reports to the state health department. (Missouri has also codified a truly bizarre restriction that criminalizes a doctor for providing an abortion to a woman who intentionally conceived in order to then abort for the purpose of using fetal tissues in transplantation. Not only is that not a thing, but how a doctor would ever be expected to divine such intent is also inexplicable.)

Of course, Missouri and Oklahoma are hardly alone in criminalizing abortion care. Though it’s not clear how often, if ever, these penalties are meted out (inquiries with both the Texas and Missouri attorneys general went unanswered, as did one with the Texas Medical Board), the literal policing of abortion providers is not the point of these laws.

Indeed, the latest crop of abortion restrictions popping up across the country provide a valuable lesson about the laws that came before them; they have pulled back the veil to expose the fiction that any of these laws were ever about anything other than trying to criminalize abortion and frustrate and shame women for accessing care.

While it is clear that the radical abortion bans now making headlines are part of a very deliberate strategy to directly challenge the right conferred by Roe, they also present an opportunity for anti-abortion crusaders to do something more insidious: normalize the restrictions already on the books. A six-week ban makes that 20-week ban look almost generous. Hospital admitting privileges a problem? At least you still have the right to have an abortion!

Most of the abortion restrictions on the books are based on junk science.

But that is exactly the wrong way to look at this. A 20-week ban — often referred to as a protection for the “pain-capable unborn” — is still based on fiction, even if on its face it appears as less of an encroachment on the right to abortion. TRAP laws that conscript provider behavior have never been necessary. In fact, most of the abortion restrictions on the books are based on junk science.

Science tells us that a 20-week fetus cannot feel pain as lawmakers insist, while we also know that many fetal abnormalities incompatible with life outside the womb are not detectable until around 20 weeks. Abortion is among the safest medical procedures, and laws that tell doctors they have to have certain facility requirements or admitting privileges do not enhance patient safety. States generally make women wait between 24 and 72 hours from their first appointment to their second, when they actually obtain an abortion, to provide a period for “reflection,” but women don’t need excessive wait times to be certain of their actions. In fact, research tells us clearly that women have a high degree of confidence in their decision-making around abortion and that those who are denied access to care have higher levels of emotional distress than those who can obtain the care they need when they need it.

In other words, the decades of restrictions placed on abortion care have been divorced from the everyday realities of women who seek to maintain their reproductive autonomy. They are solutions in search of a problem that use the art of shame and fear to convince us they’re needed. Yet despite the heavy-handed approach, it is still true that nearly half of all pregnancies in the U.S. are unintended and that nearly 40 percent of those end in termination. Under current trends, nearly a quarter of all women in the U.S. will have had an abortion by age 45.

Those may be stats that people would like to see change. But codifying lies justified by moral righteousness and criminalizing the behavior of millions of mothers, sisters, and daughters will never make that happen.