By contrast, the new laws seek to curtail medical discretion. Under the Alabama measure, doctors can perform abortions only when a woman is facing death or “serious risk of substantial physical impairment of a major bodily function.” Otherwise, abortion is a class A felony, and Reagan said the potential 99-year prison sentence it carries is far longer than any punishment a doctor could have faced in pre-Roe America.
The text of the Alabama law explicitly likens abortion to a crime against humanity. More “than 50 million babies have been aborted in the United States since the Roe decision in 1973, more than three times the number who were killed in German death camps, Chinese purges, Stalin’s gulags, Cambodian killing fields, and the Rwandan genocide combined,” it says. Surely this is a signal to prosecutors to treat it as an extraordinarily grave transgression.
At least the Alabama law exempts people having abortions from prosecution. But they are not spared by the Georgia law, which, as Mark Joseph Stern points out in Slate, has language that criminalizes self-induced abortion. Nor are women who abort exempt from punishment in the most recent version of Louisiana’s six-week abortion ban.
Republican politicians in other states are clearly interested in locking women up; last month Texas legislators held a hearing on a bill that would allow women who have abortions to be charged with homicide and potentially subject to the death penalty. In a post-Roe future, the political fight, at least in red states, could shift from whether women can have abortions to whether they can be imprisoned for them.
None of this should whitewash the horrors and indignities that women in America endured before Roe. According to the Guttmacher Institute, there were almost 200 reported deaths from illegal abortion just in 1965, 17 percent of all deaths from pregnancy and childbirth that year. Each year thousands of women were hospitalized for botched abortions. And while women were rarely incarcerated for aborting, they were regularly threatened with prosecution to get them to testify against providers. America was a repressive place for women, without even the pretext of legal equality.
Still, a lesson of fundamentalist regimes worldwide is that when reactionaries try to enforce their ideas about gender traditionalism, they can be more tyrannical than real tradition ever was. Granting personhood to fetuses has already enabled some states to subject women to new types of social control; as ProPublica reported, in 2014 a woman was arrested under Alabama’s “chemical endangerment of a child” statute for taking half a Valium while she was pregnant. Those who might be ambivalent about abortion should realize that these strictures can apply to them as well.
As we watch Donald Trump remake this country in ways that once seemed unimaginable, it’s tempting to reach for historical analogies to grapple with what’s happening. It’s why, as people struggle to understand how his abuses of power might be constrained, there’s been renewed interest in Watergate. Yet, as in the comparison between Richard Nixon and Trump, the past can prove inadequate to understanding the depredations of the present. Rather than moving backward, we’re charting awful new frontiers.