# Pro-lifers: What should the punishment for getting an abortion be? **URL:** \ **Category:** Great Debates\ **Created:** [March 11, 2006, 12:54am UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899 "2006-03-11T00:54:45Z")\ **Posts on this page:** 19\ **Page:** 24
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [March 19, 2006, 6:54pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/461 "2006-03-19T18:54:30Z")
> [@Walloon](#): > > …Like I just said above, that’s how abortion laws have been written for the last hundred years, and they have never been struck down by any court under that argument… I’d like some cites that pre-Roe abortion laws included the language, “life begins at the time of conception” or “each human being is totally unique immediately at fertilization” or “the rights, interest, and life of her unborn child”. Post Roe any abortion ban has to show a compelling state interest that trumps the privacy rights of the woman. > [@Walloon](#): > > > [@saoirse](#): > > > > you can’t create a plenary exemption from prosecution for one class of individuals. > > Yes, you can. Justice Anthony Kennedy, in _Romer v. Evans_ (1996): [ > [@](#): > > Romer v. Evans > 517 U.S. 620 (1996) > > Facts of the CaseColorado voters adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.” Following a legal challenge by homosexual and other aggrieved parties, the state trial court entered a permanent injunction enjoining Amendment 2’s enforcement. The Colorado Supreme Court affirmed on appeal.Question PresentedDoes Amendment 2 of Colorado’s State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violate the Fourteenth Amendment’s Equal Protection Clause?ConclusionYes. In a 6-to-3 decision, the Court held that Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. In his opinion for the Court, Justice Anthony Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to “advance a legitimate government interest.” Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded: “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” ]([{{meta.fullTitle}}](http://www.oyez.org/oyez/resource/case/653/)) > [@](#): > > JUSTICE KENNEDY delivered the opinion of the Court. > > One century ago, the first Justice Harlan admonished this Court that the Constitution “neither knows nor tolerates classes among citizens.”…Unheeded then, those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado’s Constitution… > > …The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons…We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end… > > …Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. “`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.’”…Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense… [right]The entire [decision](http://laws.findlaw.com/us/517/620.html).[/right] Nice bit of selective quoting there! Find a case that meets **saoirse** ’s criteria! CMC fnord! ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 19, 2006, 7:04pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/462 "2006-03-19T19:04:19Z")
> [@crowmanyclouds](#): > > Find a case that meets **saoirse** ’s criteria! The quote itself is still apt. An equal protection claim that has no suspect class involved for a law where a rational basis can be demonstrated (again, a low constitutional threshold) is tough to prove. One could just as easily say, show the case that proves saoirse’s claim, since he/she made it. What case supports this contention, since an equal protection argument seems a non-starter? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 19, 2006, 7:05pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/463 "2006-03-19T19:05:57Z")
> [@crowmanyclouds](#): > > I’d like some cites that pre-Roe abortion laws included the language, > “life begins at the time of conception” > or “each human being is totally unique immediately at fertilization” > or “the rights, interest, and life of her unborn child”. > > Post Roe any abortion ban has to show a compelling state interest that trumps the privacy rights of the woman. I agree, that has been the standard. This is part of the uneasiness I have about how the SD law was fashioned. I’m not sure it was the most logical construction. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 19, 2006, 7:15pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/464 "2006-03-19T19:15:33Z")
> [@](#): > > A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense… I didn’t include that because it is irrelevant; the laws we are discussing in this thread are not about seeking aid from the government. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [March 19, 2006, 7:19pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/465 "2006-03-19T19:19:10Z")
> [@Stratocaster](#): > > I’ll tell you right out that I consider late-term abortions much, much closer–if they are not already crossing the line–to being outright acts of murder. So, from my perspective, the SD law might be incoherent in that regard. I see little difference between an abortion a day short of delivery and the killing of a one-day-old infant, if there is any legal difference at all. It’s hard for me to fathom a woman believing an unborn child 9 months into her pregnancy is merely a “blob of tissue,” or not understanding that the child could simply be delivered. FTR I am pro-choice (or whatever you want to call that side of the fence…no need to go there again) and I agree with this 100%. Now understand that the SD law erases any distinction between a blastocyte (1st week of pregnancy), a pregnancy in its ninth month, a 1 month old or a 30 year old. SD is essentially saying all of those groups are alive and deserving of the same protection of the law. Read that again…SD views them as the same. So, all the same under SD law yet then SD says group A is free to kill group B. You find that a defensible legal principle? ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 19, 2006, 7:23pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/466 "2006-03-19T19:23:58Z")
Both _Roe_ and _Casey_ have established that the government _does_ have a compelling right to protect the unborn; the only debate is when. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [March 19, 2006, 7:40pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/467 "2006-03-19T19:40:54Z")
> [@Walloon](#): > > Both _Roe_ and _Casey_ have established that the government _does_ have a compelling right to protect the unborn; the only debate is when. So, we’re going to throw out the parts of Roe we don’t like and keep the parts we do? I’m under the impression that if Roe is overturned, we start back at the beginning, pre Roe. CMC fnord! ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 19, 2006, 7:45pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/468 "2006-03-19T19:45:17Z")
> [@crowmanyclouds](#): > > I’d like some cites that pre-Roe abortion laws included the language, > “life begins at the time of conception” > or “each human being is totally unique immediately at fertilization” > or “the rights, interest, and life of her unborn child”. The South Dakota statute (the one that the recent bill amends) contains a severability clause: > [@](#): > > 34-23A-20. Severability of provisions. If a part of this chapter is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this chapter is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. In other words, courts, prosecutors, and juries don’t have to agree with the legislative “findings” that you quote. They are supplememts to the law, and not the law itself. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 19, 2006, 7:50pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/469 "2006-03-19T19:50:00Z")
> [@crowmanyclouds](#): > > I’m under the impression that if Roe is overturned, we start back at the beginning, pre Roe. When a Supreme Court decision is overturned, it is not necessarily overturned in all its parts. Usually, only parts of it are overturned. For example, _Plessy v. Ferguson_ established that laws allowing “separate but equal” facilities for black Americans were legal. The “separate” was eventually overturned, but the “equal” was retained. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [March 19, 2006, 7:53pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/470 "2006-03-19T19:53:15Z")
> [@Walloon](#): > > The South Dakota statute (the one that the recent bill amends) contains a severability clause:In other words, courts, prosecutors, and juries don’t have to agree with the legislative “findings” that you quote. They are supplememts to the law, and not the law itself. First, that has nothing to do with my request for pre-Roe abortion law language. 2) I know why SD added that bit of language to the bill, do you? Hint: it has to do with what happened last time they tried this. CMC fnord! ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 19, 2006, 7:53pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/471 "2006-03-19T19:53:49Z")
I should add that _Roe_ and _Case_ did not _create_ the concept that governments have a compelling interest in protecting life before birth; they acknowledged an existing right that state governments already claimed. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 19, 2006, 7:55pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/472 "2006-03-19T19:55:33Z")
> [@crowmanyclouds](#): > > I know why SD added that bit of language to the bill, do you? That clause was already in the statutes, it wasn’t part of the recent bill. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [March 19, 2006, 8:03pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/473 "2006-03-19T20:03:07Z")
Let’s switch the question around: Do you think that if a woman obtains an abortion post-viability, when neither her health nor life is endangered, she should be prosecuted for murder? Why or why not? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 20, 2006, 12:27am UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/474 "2006-03-20T00:27:08Z")
> [@Whack-a-Mole](#): > > Now understand that the SD law erases any distinction between a blastocyte (1st week of pregnancy), a pregnancy in its ninth month, a 1 month old or a 30 year old. SD is essentially saying all of those groups are alive and deserving of the same protection of the law. Read that again…SD views them as the same. Yes, I agree that this aspect of it is a bit incoherent, from my perspective anyway. > [@](#): > > So, all the same under SD law yet then SD says group A is free to kill group B. You find that a defensible legal principle? Do I believe a law that prosecutes abortion providers but exempts women from prosecution is a defensible legal position? Why, yes, I believe I’m on the record as such. The fact that I might want late-term abortions to include prosecution of the mother doesn’t mean that the SD legislature has to agree with me. And I still don’t see how a law that prohibits an act can be deemed to expressly permit the same act, which is what you seem to be asserting. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [March 20, 2006, 12:30am UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/475 "2006-03-20T00:30:09Z")
> [@crowmanyclouds](#): > > So, we’re going to throw out the parts of Roe we don’t like and keep the parts we do? > I’m under the impression that if Roe is overturned, we start back at the beginning, pre Roe. Well, if we do, Roe overturned the notion that the state’s interest in restricting abortions was absolute. So, if you’re right, we’d revert to a legal scenario where states would be free to make complete restrictions, as many did. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [March 20, 2006, 2:02am UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/476 "2006-03-20T02:02:13Z")
> [@Walloon](#): > > That clause was already in the statutes, it wasn’t part of the recent bill. My bad, you said 34-23A-20, I was thinking sections 10 & 11 of HB1215, but either way I was referring to the text of the bill, not the [South Dakota Codified Laws](http://legis.state.sd.us/statutes/index.aspx). Now that I’ve found that, your right about it preexisting in the law, but it is part of the [bill](http://legis.state.sd.us/sessions/2006/bills/HB1215enr.htm). It seems that sections 10 & 11 were added to the bill to keep the governor from vetoing it, > [@](#): > > …Rounds {Gov. Mike Rounds (R)} has indicated that he would sign the South Dakota measure if it does not jeopardize existing abortion restrictions while the legislation is challenged. In 2004, he vetoed a similar bill because of concerns that abortion restrictions would be eliminated during legal wrangling. Hunt {Rep. Roger W. Hunt, a Republican who sponsored the bill} said his bill has addressed the governor’s concerns… [RIGHT]{DarkRed} **Bold** Underlined=CMC[/RIGHT] > [@Walloon](#): > > The South Dakota statute (the one that the recent bill amends) contains a severability clause: > > > [@](#): > > > > 34-23A-20. Severability of provisions. If a part of this chapter is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this chapter is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. > > In other words, courts, prosecutors, and juries don’t have to agree with the legislative “findings” that you quote. They are supplements to the law, and not the law itself. I think your wrong about what it does. ISTM, 34-23A-20 says if any part of CHAPTER 34-23A PERFORMANCE OF ABORTIONS, say 34-23A-18, ( **Abortion as evidence in proceedings to terminate parental rights** or to adjudicate dependency of child.) If the bolded part were found to be invalid, it would not make all of CHAPTER 34-23A ,or the unbolded part of 34-23A-18, invalid. Where are our damned lawyers when we need them! Those “legislative findings” are the compelling state interests that the law uses to make abortion illegal! > [@Walloon](#): > > Let’s switch the question around: Do you think that if a woman obtains an abortion post-viability, when neither her health nor life is endangered, she should be prosecuted for murder? Why or why not? Your leaving out exemptions, how about fatal congenital defects of the fetus not discovered until after viability? CMC fnord! ---
**Author:** ![holmes](https://avatars.discourse-cdn.com/v4/letter/h/e95f7d/32.png) [@holmes](https://boards.straightdope.com/u/holmes)\ **Post date:** [March 20, 2006, 2:11am UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/477 "2006-03-20T02:11:06Z")
> [@Walloon](#): > > Well, obviously abortion laws for the last one hundred years have this distinction. And more importantly, have withstood any court challenge on the grounds you outline. That’s not actually true, while I haven’t been able to find a woman prosecuted for having an abortion, they weren’t given immunity either. There’s a difference, between an unwritten law, and one like SD, grants immunity from the results of their own actions, regardless of their level of participation. Usually there was a deathbed confession, which make prosecution a non-issue: > [@](#): > > …Later, the police brought in the midwife and asked Petrovitis “if this was the woman.” She nodded “yes.” A third police officer drew up another dying statement “covering the facts.” As he read the third statement back to Carolina, she lay in bed “in pain, vomiting;” she made her “mark” on the statement. And then she died. > > This chapter answers an important question in the history of reproduction: how did the state enforce the criminal abortion laws? From the mid-nineteenth-century criminalization of abortion through the 1930s, the state chiefly prosecuted abortionists after a woman died as a result of an illegal abortion. Hard to prosecute a dead woman. Ironically as technology advanced and abortion wasn’t always a death sentence; this gave the state witnesses. And while the state didn’t prosecute women, they didn’t automatically give them immunity either…there was a price to pay. > [@](#): > > The state did force women to speak in public courtrooms in order to enforce the criminal abortion laws. In 1942, the New York state legislature passed a statute that compelled women who had gone to abortionists to testify in criminal abortion cases. When a woman who had an abortion refused to testify at a 1949 abortion trial in Chicago, the judge cited her for contempt of court and ordered her to jail for six months. One night in jail convinced the woman to testify the next day. In criminal abortion trials, women often testified under duress The point being, as far as I can tell, the SD laws is the first time women are being given immunity, written immunity from criminal prosecution concerning their part in having an abortion, while everyone else isn’t. No matter what your stance on abortion is, that should bother you. Quotes are from [When abortion was a crime](http://content.cdlib.org/xtf/view?docId=ft967nb5z5&brand=eschol) ---
**Author:** ![holmes](https://avatars.discourse-cdn.com/v4/letter/h/e95f7d/32.png) [@holmes](https://boards.straightdope.com/u/holmes)\ **Post date:** [March 20, 2006, 2:46am UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/478 "2006-03-20T02:46:17Z")
> [@Walloon](#): > > When national prohibition ended in 1933, per capita consumption of alcohol had dropped to half of its pre-prohibition levels. And didn’t return to its pre-prohibition levels until the 1970s. Right, but prohibition allowed the Mob to thrive, which increased drug use, book running, prositution and murder. > [@](#): > > The organized-crime syndicate in the United States is a product of the prohibition era of the early 20th cent. The efforts of federal officials to enforce the unpopular Volstead Act (see Volstead, Andrew Joseph) of 1920 generated the growth of highly organized bootlegging rings with nationwide and international contacts. What’s being suggested is that by making abortion illegal, and removing the doctors from the open, while not ‘punishing’ the women who desire abortions; you will create a ‘bootleg’ ring of drug dealers and underground abortionists. Without fear of ‘punishment’, women will be willing to pay anything and risk anything in order to have an abortion…such demand, as we have seen with prohibition, will create an environment that ‘may’ increase abortions as we are a nation of easy pill-popers. Right now, legal abortion requires records and planning, black market pills don’t. As noted, the ‘abortion’ pill, isn’t readily available yet, and not the first choice, but once it is; you’ll start finding it in high schools and playgrounds…why bother with birth control, when I can take a pill? No surgery, no doctors and no one has to know…all it takes is a pill. Don’t underestimate the power of the street… ---
**Author:** ![The\_Hamster\_King](https://avatars.discourse-cdn.com/v4/letter/t/8edcca/32.png) [@The\_Hamster\_King](https://boards.straightdope.com/u/The_Hamster_King)\ **Post date:** [March 20, 2006, 5:02pm UTC](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899/479 "2006-03-20T17:02:41Z")
> [@Walloon](#): > > Let’s switch the question around: Do you think that if a woman obtains an abortion post-viability, when neither her health nor life is endangered, she should be prosecuted for murder? Why or why not? In certain rare circumstances, yes, I think she should. I believe that it’s impossible to peg an exact moment when human life begins. It’s a gradual process. But eventually you reach the point where the child in the mother’s womb is essentially the same as a newborn. A healthy woman who arranges to have a normal pregnancy terminated at 8 1/2 months should be punished just as we punish a mother who abandons her newborn in a dumpster. Because there isn’t a clear point where human life begins, the Roe v. Wade approach of using a sliding scale of restrictions is just and fair. At one end you have abortion at will and at the other you have severe restrictions with exemptions only for medical emergencies. The pro-choice position is both logically and morally consistent. [Previous page](https://boards.straightdope.com/t/pro-lifers-what-should-the-punishment-for-getting-an-abortion-be/347899.md?page=23)