With Roe v. Wade on thin ice, state legislatures are producing a wave of anti-abortion bills, some of them truly eye-popping. Missouri alone has in recent weeks tried to limit out-of-state travel for abortion, proposed treating the delivery or shipment of abortion pills as drug trafficking and moved to make it a felony to perform an abortion in the event of an ectopic pregnancy (in which a fertilized egg implants outside the womb), a condition that can be life-threatening.
In the past, many extreme bills like these would have captured the public’s attention and then quickly disappeared, swept under the rug by lawmakers and abortion opponents who had easier-to-enact plans for dismantling abortion rights.
The past year has been different, in a few ways. For one, some fringe bills are actually going into effect. S.B. 8, the Texas law that bans abortion after about six weeks of pregnancy and allows people to sue those who “aid or abet” abortion for at least $10,000, started wreaking havoc in the state in September. A few years ago, S.B. 8-style bills were not on anyone’s radar. Now, they’re spreading, with Idaho passing its own version in recent days.
Not every bill being introduced will succeed, but those that fail will matter, in part by influencing the national conversation about women who have abortions. That’s another way things have changed in recent months: Some of this new crop of bills reflect a change in how the anti-abortion movement portrays such women, depicting them as serious criminals rather than innocent victims of the “abortion industry,” as was common in the past. That rhetorical and legal shift sends a powerful message about who is likely to face criminal punishment when Roe is dismantled, as it is expected to be this summer.
The anti-abortion argument that women seeking abortions are victims who need to be protected gained currency in the 1990s amid a wave of clinic blockades, bombings and the murder of abortion doctors. The anti-abortion movement had an image problem. Even internal polls conducted by the movement suggested that many Americans believed it to be not only violent but also anti-woman.
The movement had a constitutional problem, too. In 1992 the Supreme Court, in Planned Parenthood v. Casey, defied expectations by refusing to reverse Roe v. Wade in its entirety. The court had saved abortion rights partly because a majority of the justices believed that abortion access had allowed women to lead more equal lives. As a result, anti-abortion groups concluded that Roe would never be overturned unless the majority of Supreme Court justices no longer believed that women needed abortion to be equal. The simplest solution, as anti-abortion leaders saw it, was to prove that abortion actually harmed the women it was supposed to help.
So the group Americans United for Life pioneered a new strategy, seeking to “shatter the myth that abortion helps women” and establish that women were victims of abortion. In 1997 Dr. John Willke, an anti-abortion obstetrician, published an updated version of his pre-Roe “Handbook on Abortion,” renaming it “Why Can’t We Love Them Both?” — referring to fetuses and women who might abort them. In 1991 the National Right to Life Committee, the nation’s largest anti-abortion organization, chose as its president Wanda Franz, a psychology professor who had started an anti-abortion research organization to study the psychological problems that some women were believed to suffer after abortion.
Woman-protective arguments underwrote dozens of anti-abortion laws that were passed around the country over the past decade. Contested claims that abortion could cause regret or even post-traumatic stress appeared in major Supreme Court opinions, such as Gonzales v. Carhart in 2007, and in mandated counseling laws in conservative states.
Yet in December, when the Supreme Court heard oral arguments in the biggest abortion case in decades, Dobbs v. Jackson Women’s Health Organization, rationalizations about protecting women from abortion were sidelined. Anti-abortion groups and lawyers for the State of Mississippi stressed that abortion was simply unnecessary: Women had achieved more equal citizenship but not thanks to widespread abortion access. Just look at the newest Supreme Court justice, Amy Coney Barrett: She’s enjoyed tremendous professional success and had a large family. Why can’t everyone else do the same?
There were always going to be practical reasons for abortion foes to stop portraying individual women as victims. For one thing, states have already prosecuted women for conduct during pregnancy. But unless states do more to punish those who can become pregnant, anti-abortion laws will become difficult to enforce: If you ban the procedure, women will travel out of state or order pills online. So you have to stop them from doing those things, too. And individual women will be easier for conservative states to target than abortion providers or pill distributors in other states or countries.
Anti-abortion states have a decision to make: If they want to strongly enforce criminal abortion bans, they will probably have to go after women. Missouri’s recent bills suggest which way that decision will go.
Mary Ziegler, a law professor at Florida State University and visiting professor at Harvard Law School, is the author of the forthcoming book “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”