When you can’t ban
something outright, it’s possible to make the process of obtaining it so
onerous as to be a kind of punishment.
At a town-hall meeting
in Green Bay, Wisconsin, last March, Donald Trump was prompted for his
views about abortion. He’d been pro-choice once, but as a Presidential
candidate he was an eager, if ill-informed, pro-lifer. Much of his
answer took the form of free-floating clauses, like dialogue from a bad
experimental play, which made his actual positions challenging to parse.
But Trump did manage to make one point clearly, and to repeat it. When
the interviewer, Chris Matthews, of MSNBC, asked whether women who’d had
abortions should be punished, Trump answered in the affirmative.
|Illustration by Harry Campbell|
Politically speaking, this was not good. In recent years, the anti-abortion movement has tried hard to show that it cares as much about women as it does about fetuses. Right-to-life groups criticized Trump’s wayward messaging, and, later that day, his campaign issued a statement explaining that it was actually doctors who ought to be punished if abortion were made illegal again: “The woman is a victim in this case as is the life in her womb.”
Trump kept more or less to that script for the rest of the campaign; his choice of Mike Pence, a flawlessly anti-abortion evangelical Christian, as his running mate surely helped. But Trump’s off-the-cuff comment had briefly exposed a truth at the core of anti-abortion politics. Since the nineteen-nineties, states have enacted hundreds of new restrictions on the constitutional right to abortion, from obligatory waiting periods and mandated state counselling to limits on public and even private insurance funding. The cumulative effect has been to transform the experience and the reputation of a safe, legal medical procedure into something shady and disgraceful that women pursue only because they don’t know enough about it or because they are easily manipulated emotional time bombs.
In a clear and persuasive new book, “About Abortion” (Harvard), Carol Sanger, a professor of law at Columbia, explores the roots and the ramifications of this chastening regime. “Much of current abortion regulation operates to punish women for their decision to terminate a pregnancy,” Sanger writes. “This is so even though abortion has not been a crime since 1973, and even then, women themselves were rarely included within criminal abortion statutes.” When you cannot ban something outright, it’s possible to make the process of obtaining it so onerous as to be a kind of punishment, Sanger argues, drawing on the ideas of the legal scholar Malcolm Feeley.