Carol Sanger Replies to David Cohen: The Risks Providers Take for Us
About Abortion focused on women—as patients, as decision makers, as the gatekeepers of human existence, to borrow from Rayna Rapp’s arresting phrase. Yet as David Cohen points out, everything I wrote about women in About Abortion has a parallel, often more aggressive application to abortion doctors (or “providers” as we call them to lower the rhetorical heat by staying as far away from “abortionists” as possible). Cohen’s post prompted me to think harder at how crime and punishment work for abortion medical professionals when compared with their patients.
Stand outside any number of abortion clinics across the United States and you will see a variety of “Don’t Kill Your Baby” signs, supposedly aimed at getting women not to commit murder but to go home and presumably adjust to the motherhood they didn’t want. But the real murderers, by anti-abortion lights, are not the women but the doctors and nurses who make abortions actually happen. We see this in pre-Roe criminal abortion laws, the doctor was charged criminally but not the woman. But why wasn’t she charged? One might think that as with any contract killing, she who commissions the killing is just as guilty as he who pulls the trigger. This is how it works normally under our criminal justice system.
There are two kinds of reasons why doctors and not patients are prosecuted under criminal abortion laws, which, by the way, are just itching to come back under Vice President Pence and his state counterparts. The first reason is that abortion providers are thought to be more culpable than pregnant women, who for the most part, have a single abortion. Doctors do it over and over again. Thus we get phrases like “abortion mills.” But murder is murder. You might get a longer sentence for being a serial murderer, as abortion providers would be considered, I suppose, but you don’t get absolved because you only paid for the hitman to do it.
This leads to the second set of reasons we leave women out. The traditional reason is that women do not consent freely to abortion: they are under the power of two categories of opportunistic men who lead them to abortion. The first are doctors for the purpose of getting rich; the second are impregnating men for the purpose of keeping the benefits of sex with women by avoiding the liabilities of fatherhood. On these accounts, women are not perpetrators but victims themselves. Due to the shortfalls in their moral and intellectual reasoning, women are but dupes.
But women understand very well what they are doing when they consent to abortion: they want to terminate an unwanted pregnancy. I would like then, to modestly propose that the criminal law should recognize this agency (should Roe be overturned) and follow it where it leads, which under criminal abortion statutes is to arrest, prosecution, and conviction. There is something coherent about this; just as it would be coherent and worthy of respect if pro-life advocates also opposed the death penalty. I suggest that this proposal surfaces what may be a more telling reason why women will continue go unprosecuted under a criminal abortion regime: no one wants to see their mom, neighbor, cousin, librarian or babysitter taken down to the hoosegow. Keeping aborting women out of jail is a way of maintaining abortion as the open secret that it is.
And what about the darling of anti-abortion supporters, the convicted doctor, Kermit Gosnell, “a sociopath who also happened to be a doctor,” in Cohen’s words, who killed a woman patient and several born babies in his shoddy offices. Gosnell was rightly convicted of murder but the story didn’t end there. He became the demon poster child in support of even more stringent laws regulating abortion providers. He was regarded less as an exception to abortion practice than as proof of the criminal essence of all of it. Cohen introduces Gosnell to show in part how naturally (and opportunistically) pro-life legislators can deploy true crime to tarnish the valiant but beleaguered practitioners who make it possible for pregnant women to exercise their right to choose.
One final point about the narrative of abortion’s lurking criminality. The argument that a procedure that is a crime can’t at the same time be medical treatment operates as an intensifier to Khiara Bridges’s demonstration of how abortion is also lifted out of the medical realm through its exclusion from Medicaid under the Hyde Amendment. Cohen and Bridges show that pro-life forces come at abortion from sorts of all angles to make sure it is not normalized as medical treatment.
That was my take on crime, but a quick summary of punishment. In About Abortion, I explain how legislators up against Roe’s essential holding that abortion cannot be criminalized have legislated as close that line as possible. In this way, complying with the ever inventive variety of abortion regulations—burying fetal remains, having to hole up in a motel while the waiting period ticks by, rejecting (or not) the invitation to look at the image of one’s unborn child– operates as a non-criminal form of punishment for pregnant women. Cohen turns our attention to the non-criminal punishments for abortion providers. In Living in the Crosshairs, he and co-author Krysten Connon bring us into the daily world of doctors and other healthcare providers who are brave and resilient (mostly) and resourceful, faced as they are by dogged opposition. Abortion providers are targeted, harassed, and reviled as a matter of politics, law, and within their own profession to boot. Making them live within the crosshairs is punishment as well as harassment, and an extremely difficult way to proceed with one’s profession day after day after day. Thanks then to Cohen for helping us understand this. And to Amelia Bonow and Gloria Steinem who by expressing gratitude to their abortion providers remind us where additional thanks is due.