For political reasons, most American opponents of reproductive freedom have been publicly committed to the obviously incoherent position that abortion is a grave moral offense that doctors should be put in jail for performing, but women should not be punished for at all. As self-induced abortions become safer, this is a circle than can no longer be squared, and I agree with Irin Carmon with where we’re headed:
It is a curious but long-standing proposition by the antiabortion movement: Abortion is murder, but women shouldn’t be held accountable. Conservative groups were publicly aghast when candidate Donald Trump blurted out last year that “there has to be some form of punishment” for women who get abortions if they’re banned. Eventually, Trump’s third and final statement that day declared: “The doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman. The woman is a victim in this case as is the life in her womb.”
But as the conservative Supreme Court majority takes shape, these narratives — the dying woman, the evil doctor — are lacking. Even if the justices overturn Roe v. Wade and legislators immediately end abortion rights in 22 states, women wouldn’t necessarily have to endanger their lives to get abortions. And they wouldn’t need doctors, either. Increasingly, women can end a pregnancy by their own hands. In these cases, there is only one person to “be held legally responsible.” There is little doubt that states would delight in prosecuting her.
Prosecuting women may affect abortion on public opinion on abortion at the margin. But even if it does, it’s not clear that it will matter in many cases — despite the popularity of same-sex marriage it would almost certainly still be illegal in a majority of states without Obergefell. The brutal truth is that the only way to protect reproductive rights in many states going forward will be a Supreme Court with a Democratic median vote, and that could be about to get a lot harder.