Abortion Bans Go Hand in Hand With a Draconian State

Abortion Bans Go Hand in Hand With a Draconian State

Badhwar, Neera K. — Read time: 9 minutes

Abortion Bans Go Hand in Hand With a Draconian State

Advocates of limited government who want to protect the unborn should rely on moral suasion, not force

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Thanks to the Supreme Court’s reversal of Roe vs. Wade this summer, abortion has become a major issue on the midterm campaign trail. Thirteen red states have banned abortion from conception without exceptions for rape or incest. Many others have proposed bans that are facing legal challenges. Meanwhile, Republican Senator Lindsey Graham of South Carolina is pushing a federal ban on abortion after 15 weeks with some exceptions, overturning his party’s long avowed commitment to states rights, especially on this issue.

It is not surprising that the religious right would push such bans given that it has discarded its compunctions about using state power to accomplish its ends. What’s more surprising is that many adherents of limited government favor them too, because they believe the state has a legitimate role in protecting the “rights” of fetuses. While a moral case against abortion to change the hearts and minds of women contemplating abortions would be consistent with their limited government commitments, legal bans simply aren’t. Such bans would inevitably unleash an invasive and draconian state on would-be mothers, their doctors and beyond.

Consider the first difficulty in enforcing an abortion ban: abortion is often indistinguishable from a miscarriage. According to the National Advocates for Pregnant Women, “Fifteen to twenty percent of all pregnancies (or approximately 1 million a year in the U.S.) will end in a miscarriage or stillbirth.” A government that criminalizes abortions will need to be vigilant about every pregnancy loss. Was it really a miscarriage—or was it an abortion? (More on this later.)

Even though Roe protected abortion rights till the point of viability of the fetus, some zealous prosecutors managed to criminally charge women who had miscarriages on the mere suspicion of a self-induced abortion. According to a 2018 report, there are about 40 different ambiguous laws in various states that prosecutors have used to charge women. Women are not safe even in a progressive state such as California where the law explicitly states that they can’t be prosecuted for the loss of a pregnancy for any reason. There have been two instances when zealous prosecutors in the Golden State criminally charged women after they had stillbirths that their doctors judged had been caused by drugs. The defense attorneys failed to point out in one case that the woman could not be charged under existing California law. And the judge either ignored the law or was ignorant of it, just like the doctors. (In the first case, the prison sentence was overturned after the woman had served four years in prison; in the second case, it was dismissed.)  When the state thinks it is justified in moral policing, it will have a tendency toward becoming draconian even when the law itself is not the problem, as is the case here. But that problem will be infinitely worse when the law actually empowers the state to do such policing.

Absolutism: Feature, Not a Bug, of the Pro-Life Movement

The pro-life movement has long given mixed signals about the exceptions it would allow in an overall ban. But even before the end of Roe, the momentum to ban all abortions, except when a mother’s life was endangered, had been gaining strength. For example, Florida Republican Sen. Marco Rubio some years ago declared that exceptions for rape and incest were anathema to him—only to recant  when his Democratic opponent in November, Val Demings, challenged him during their lone debate.

But regardless of Rubio’s vacillations, the fact of the matter is that the more extreme “no exceptions except for mother’s life” position is the only one consistent with a commitment to fetus rights. Why? If a fetus has as strong a claim to life as a child, then the fact that the fetus resulted from rape or incest or that the fetus has severe anomalies, cannot justify an abortion. Even if rape or incest victims were minors or mentally disabled women, the standing of the fetus wouldn’t be vitiated.

But does the lone exception for a mother’s life (not her health, mind you) that extreme abortion opponents right now allow afford enough protections for the mother’s life? Not really, because it is not always clear that a mother’s life is in danger even if it is. When a woman is hemorrhaging and sepsis is likely to set in, the danger is clear-cut and the state may allow an abortion. But what if the danger is not imminent, and it’s possible that the fetus will be expelled naturally? Inevitably, in such situations, with the threat of prison looming, many doctors will be unwilling to take the risk of performing an abortion if there is any ambiguity about its necessity.

This is not a theoretical worry. When prosecutors started charging doctors on the suspicion of overprescribing pain medicines, scores of doctors stopped prescribing them. The Supreme Court ruling earlier this year that doctors can’t be charged when they are acting in good faith has once again freed doctors to act in accordance with their best medical judgment. But till then, many pain patients either lived in constant pain or turned to the black market and bought drugs adulterated with heroin or fentanyl, a potent killer. (One pain patient recently killed his doctor for leaving him in constant pain, before killing himself.)

Likewise, one should expect many doctors to stop performing life-saving abortions when the danger to the mother is probable, or even certain but not imminent, out of fear of prosecution, even if it is technically allowed under the law. After Texas passed the 2021 Heartbeat Act, the notorious law that gave private citizens the right to sue anyone who performs or enables an abortion, a woman with an ectopic pregnancy was turned away by her own doctor as well as a hospital—even though such a pregnancy is a death sentence for both mother and fetus if an abortion can’t be performed in a timely fashion. 

Sure, the doctors deserve some blame for being overly self-protective and not doing their job in such a clear-cut case, especially since the Texas law does allow an abortion in a medical emergency or when a pregnancy “poses a serious risk of substantial impairment of a major bodily function.” But the medical emergency exemption does not cover pregnancies that are threatening to women with pulmonary hypertension or certain other health problems. Low-income, rural women with such conditions who don’t have access to good doctors that can oversee their pregnancies would face charges if they get an abortion or risk their lives if they don’t. Either way, their agency to determine their own treatment will be seriously compromised.

(The only potential hope for such women who live in states that restrict or ban abortion is the federal 1986 Emergency Medical Treatment and Labor Act. This law requires hospitals to perform an abortion when a doctor’s best clinical judgment deems that it is needed “to stabilize a pregnant patient’s emergency medical condition.” The Center for Medicare and Medicaid Services declared in July 2022 that EMTALA overrides all state laws to the contrary and applies to all hospitals that participate in Medicare. However, Texas has challenged the ruling and others may follow.)

The Slippery Slope to Criminalizing Pregnant Women

Although the pro-life movement right now is trying to accomplish its ends mainly by cracking down on abortion providers, women are still getting ensnared in the prosecution’s crosshairs. There have already been instances when prosecutors have tried to “subpoena women’s medical records and private social media files” as part of their criminal investigations into abortion providers, raising all kinds of privacy concerns, as The New York Times has reported.

Also, many in the pro-life movement claim that they don’t intend to enforce abortion bans by going after pregnant women, only providers. But just as exceptions to the ban are not sustainable under an abortion regime, neither is this line. Indeed, there is already a movement of “abortion abolitionists” pushing charges against mothers. Their argument is simple: the fetus is a person with rights equal to that of a child, hence the mother who kills it is a criminal, and must be treated as such. The fact that, like the vast majority of people, the mother disagrees with the basic premise is of course immaterial to them.

Nor are women seeking abortions the only ones who are going to be affected by an abortion ban—potentially all pregnant women are. If one accepts the notion that a fetus is a person worthy of legal protections, then anything that a pregnant woman does that endangers the fetus could become fair game for state oversight. Civil rights attorney Cynthia Conti-Cook worries, “Pregnant people’s decisions—to self-medicate, to not medicate, to seek substance abuse treatment, to drink alcohol, or smoke cigarettes—are all decisions that could be criminalized.” Indeed, notes columnist Sam Levin in The Guardian, “Pregnant women have been criminalized for falling down stairs; giving birth at home; exposing a fetus to dangerous ‘fumes’; having HIV; not resting enough during the pregnancy; not getting to a hospital fast enough while in labor; being the victim of a shooting; and self-inducing an abortion.”

The all-important requirement of mens rea has been eliminated in many of these cases. Of course, the elimination of mens rea is not inherent in an abortion ban; and no one who cares about justice would support it. But Congress and state legislatures often pass laws without the requirement of mens rea.

Punitive State Locks Hands with Surveillance State

An abortion prohibitionist regime is likely to not only lead to the growth of the punitive state against women, it’ll also unleash an intrusive surveillance state. The nature of a pregnancy and the pregnant woman’s relationship to a fetus would practically invite that. Pro-life activists liken laws against abortion to laws against murder, except they ignore that in the case of murder, the perpetrator and victim are distinct individuals with distinct bodies. But in the case of abortion, the perpetrator and the victim inhabit the same body. It is for this reason that it becomes hard to distinguish between a miscarriage—an accidental death—from an abortion—an intentional “killing.” Doing so would require close surveillance of women and their bodily functions. For example, notes Conti-Cook, the state could follow the “digital trails” that pregnant women leave during web searches if it suspects that they might have injured their fetus. However, in the case of actual murder, it is not as hard to distinguish between an accidental death and a murder, which is why there is less need for a surveillance state.

There is another reason why laws against murder don’t lead to an all-powerful state but anti-abortion laws would. Everyone agrees that murder is wrong. That is far from the case with abortion. To the contrary, 61% American adults believe that abortion is not wrong and should be legal under most circumstances. So banning abortion would create a generalized suspicion of women of childbearing age, their doctors and potentially friends and family who might be enabling them.

But the irony is that even though a draconian state is likely to grow like mold under an anti-abortion regime, it might not significantly help the pro-life movement’s efforts to protect fetuses. Under Roe, the abortion rate steadily went down for 40 years, as David French, a pro-lifer, admits, namely because of a shift in cultural attitudes.

Limited government advocates who oppose abortion should use non-coercive means to persuade supporters of reproductive rights. Legal bans will only invite a Leviathan and violate their political commitments without advancing their cause.

This piece has been adapted from Badhwar’s essay at ProSocial Libertarians.

Neera Badhwar is Professor Emerita of Philosophy at the University of Oklahoma, and Senior Researcher at Mercatus Institute. She continues to write about philosophical issues, but also has a new interest: writing children's stories.

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