Lynn Paltrow is the executive director of National Advocates for Pregnant Women in New York and Charon Asetoyer is the executive director of the Native American Women's Health and Education Resource Center in South Dakota.
This week South Dakota Governor Mike Rounds signed a law that bans almost all abortions in the state. Neither the governor nor the law's supporters have been honest about what the effect of the law will be.
Those who authored the law want to create impression that only the people providing the abortions will be punished, not the women having them. They are not brave enough enough to admit what is clear: women will be punished and they and their families will suffer if this law goes into effect.
We know that before 1973—when abortion was illegal in most states—that even if the statute did not specifically provide for the prosecution of the woman who had the abortion, pregnant women could still be arrested under separate laws permitting the prosecution of those who aid and abet a crime. Moreover, as Leslie Reagan points out in her book, When Abortion was a Crime, many women, while not arrested, were publicly shamed and subjected to police investigations that were in and of themselves a form of punishment.
Undoubtedly, the bill's supporters will point to language that states that “nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.” The truth is, though, that this particular act need not authorize arrests of pregnant women for such arrests to start taking place.
South Dakota, like many other states has adopted numerous laws that seek to establish the unborn as full legal persons. For example, South Dakota has a feticide statute that makes the killing of an "unborn child" at any stage of prenatal development fetal homicide, manslaughter, or vehicular homicide as well as a law that requires doctors to tell women that an abortion ends the life of “a whole, separate, unique living human being.” The new law banning virtually all abortions states that it is based on the conclusion “that life begins at the time of conception,” and that “each human being is totally unique immediately at fertilization.”
If the unborn are legal persons, as numerous South Dakota laws assert, then a pregnant woman who has an abortion can be prosecuted as a murderer under already existing homicide laws.
Farfetched? Not at all. Prosecutors all over the country have been experimenting with this approach for years. In South Carolina, Regina McKnight is serving a 12-year sentence for homicide by child abuse. Why? Because she suffered an unintentional stillbirth. The prosecutors said she caused the stillbirth by using cocaine despite evidence that Ms. McKnight's stillbirth was caused by an infection.
Thus far, South Carolina is the only state whose courts have upheld the legitimacy of such prosecutions. But in fact, women in states across the country, including South Dakota, have already been arrested as child abusers or murderers—without any new legislation authorizing such arrests. In Oklahoma, Teresa Hernandez is sitting in jail on first-degree murder charges for having suffered an unintentional stillbirth. In Utah, a woman was charged with murder based on the claim that she caused a stillbirth by refusing to have a c-section earlier in her pregnancy. If women are now being arrested as murderers for having suffered unintentional stillbirths, one should assume that in South Dakota's post-Roe world intentional abortions would be punished just as seriously.
Rather than admit that this law will hurt pregnant women and mothers, South Dakota's legislators pretend it protects them. Indeed, the authors of this bill call it the “Women's Health and Human Life Protection Act.” In another age we might expect that legislation so named would address such urgent women's health problems as breast and cervical cancer, the fact that 88,350 South Dakotans—12 percent of the state's population—are without health insurance or the fact that South Dakota guarantees no paid maternity leave for the many mothers who must continue working in order to feed their families.
Far from protecting women's health, this bill will undermine women's health—because women will have abortions for health, family, and personal reasons whether they are legal or not. It will open the door to the arrest of women themselves, while claiming it protects unborn life. South Dakota's legislators, however, should be brave enough to admit that in passing this law they are attacking the women who give that life and ignoring the real criminal and public health consequences of such a law.