The mistake Donald Trump made when he said that “there has to be some form of punishment” for women who have abortions was saying out loud something that is already happening.
For proof, look no further than the rush to disassociate him from the anti-abortion movement.
As soon as Ted Cruz, John Kasich, and mainstream anti-abortion groups caught wind of Trump’s draconian suggestion—which he made to Chris Matthews on Wednesday during a pre-taped MSNBC town hall event—they descended on the Republican frontrunner with a flurry of condemnatory statements.
“Of course women shouldn’t be punished,” Kasich told Chuck Todd but the candidate shied away from explaining how he would enforce his own opposition to abortion outside of cases of rape, incest, and life endangerment.
“I think you have to be very careful in how you do it,” the governor said. “We’re a long way from there.”
“Of course we shouldn’t be talking about punishing women,” added Cruz, who only supports legal abortion in cases of life endangerment, in a late afternoon statement. “We should affirm their dignity and the incredible gift they have to bring life into the world.”
By that time, Trump had already walked back his earlier remarks to fall in line with the anti-abortion Susan B. Anthony List, which had stressed earlier in the day that “punishment is solely for the abortionist who profits off of the destruction of one life and the grave wounding of another.”
“[T]he doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman,” wrote Trump in a follow-up statement. “The woman is a victim in this case as is the life in her womb.”
This is not the first time Trump’s position on abortion has changed. The candidate once called himself “very pro-choice” but announced in 2011 that he was “pro-life,” attributing his conversion to a conversation with a friend whose wife had considered abortion but decided against it.
But even though Trump retracted his earlier comments to Matthews, a ban on abortion—even with his preferred exceptions for rape, incest, and life endangerment—would still punish women with or without legal consequences.
The mercurial businessman even told the MSNBC host that banning abortion means “go[ing] back to a position like they had where they would perhaps go to illegal places.”
In essence, Trump was admitting that his official position is tantamount to the pre-Roe v. Wade days of back-alley and coat hanger abortions. For women, Donald Trump’s America would be punishment enough. Studies estimate that hundreds of thousands of illegal and unsafe abortions took place every year in the 1950s and 1960s. Restricting access to safe abortion by jailing physicians would almost certainly lead to dangerous self-induced abortions, hospitalizations, and deaths.
But we don’t need a President Trump to punish women for abortion. Women are already punished for having abortions under the sort of laws that Kasich and Cruz have long supported.
The punishment starts when women must walk past groups of shouting protesters to even enter an abortion provider. It continues when women in at least 17 states are given mandatory pre-abortion counseling that includes medically inaccurate information about fertility risks, breast cancer links, and fetal pain. In 13 states, they are punished with a state-mandated ultrasound, no matter their stage of pregnancy. Women are punished again when waiting periods require them to make multiple trips to the clinic, further increasing the expense of the procedure.
And even though many anti-abortion groups like the Susan B. Anthony List do not support the direct criminalization of women who have abortions, it is always women who are punished by proxy when abortion providers are targeted.
Nowhere is this more evident than in Texas, where a law requiring abortion providers to obtain admitting privileges at a local hospital has closed clinics and placed low-income Latina women in desperate situations. Research from the University of Texas at Austin’s Texas Policy Evaluation Project (TxPEP) estimated that at least 100,000 Texan women have tried to self-induce an abortion, and that Latinas living in the Rio Grande Valley were significantly more likely to have made an attempt.
But if a wide range of maddening logistical restrictions doesn’t count as “punishment,” some women are already legally punished and jailed for having an abortion.
Thirty-eight states have some version of a “fetal homicide” law which can, in some cases, be used to prosecute women who self-induce or attempt to self-induce an abortion. Last year, for example, a 31-year-old Tennessee woman was indicted on a charge of first-degree attempted murder for a failed coat hanger abortion that sent her to the hospital. Even women who terminate their pregnancies using less risky methods like medication have been punished under these laws. According to the Guttmacher Institute, there have been at least six cases of criminal charges for attempting to self-induce an abortion using pills, often ordered over the Internet.
Marjorie Dannenfelser, the president of the Susan B. Anthony List who condemned Trump’s remarks Wednesday, has expressed her opposition to fetal homicide laws. And March for Life Education and Defense President Jeanne Mancini said Wednesday in reaction to Trump’s comments, “No pro-lifer would ever want to punish a woman who has chosen abortion.”
But the wave of abortion restrictions that Republican-controlled state legislatures have worked to pass over the last six years have an undeniable effect on women who choose abortion.
And the fetal homicide laws that have sent women to jail for having abortions don’t come out of thin air, either. The anti-abortion group Americans United for Life (AUL) claims to have “spearheaded” the efforts to pass this legislation and they are certainly a part of the “pro-life” movement as is—like it or not—Donald Trump.
However vehemently abortion opponents repudiated Trump today, there is indeed no way to overturn Roe v. Wade and make abortion illegal or without some form of punishment. Severely restricting abortion access will always punish women. The only question is how directly you do it.