Kathryn Lopez

Celebrated Newsweek columnist Anna Quindlen recently mentioned a YouTube video about a question that falls into a common abortion trap. The filmmaker behind "Libertyville Abortion Demonstration" asks pro-lifers how much jail time women who seek abortions should receive if Roe v. Wade were to be overturned.

What people who ask this question fail to understand is what most abortion opponents actually want -- to stop the additional victimization of women. They already are victimized by abortion. Women are often pressured into it by desperate circumstances and suffer in silence for years after their decision. The question feeds into the misconception that the United States will descend into a state of vigilante abortions. This fantasy is complete with headlines trumpeting a new world of oppression as American women are carted off to jail in their most despondent hours.

In reality, the Supreme Court, if it overturned the landmark decision, would put the abortion decision in the hands of the people, where it should have been all along. Federalism will reign, as each state will decide for itself what to do. (The 1973 Supreme Court decision ruled that state bans on first- and second-trimester abortions were unconstitutional.)

If Roe v. Wade is overturned, there will be a barrage of questions, hashed out state by state: Exactly what type of abortion will be legal? Should there be an outright ban? Could women be hit with severe sentences for trying to get an abortion?

In pre-Roe New York State, as it happens, women who had abortions were considered, according to the letter of the law, criminals. (This was not the case in every state.) But in practice -- in the interest of shutting down doctors who perform abortions -- women would customarily get immunity from criminal prosecution if they testified against the abortionists. It was practical and it was compassionate.

History suggests that when tough anti-abortion laws exist, desperate women aren't rushed to the slammer. If you don't trust whack-job pro-lifers like me, look at the historical record. Abortion was illegal in the United States prior to the Supreme Court's 1973 ruling, and women weren't being rushed to jail in droves for seeking abortions. Women weren't prosecuted because the law generally wasn't after them to begin with.

According to "Dispelling the Myths of Abortion History" (Carolina Academic Press, 2006) by Joseph W. Dellapenna, and according to other historians, law enforcement took aim at the "do no harm" community -- the doctors who performed abortions. And even then, "enforcement in the United States focused on the revocation of medical licenses" in the 1930s, with an uptick in prosecutions in the 1940s and 1950s.


Kathryn Lopez

Kathryn Jean Lopez, editor of National Review Online, writes a weekly column of conservative political and social commentary for Newspaper Enterprise Association.