What Attorney Mary Ziegler Gets Wrong About Pro-Life Tactics

Article ID: JAF0422JW | By: Jay Watts


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The New York Times recently published an opinion essay from Mary Zigler, Florida State University law professor titled, “Anti-Abortion Groups Once Portrayed Women as Victims. That’s Changing.”1 Ziegler claims that opponents of legal abortion have gravitated away from offering legislation grounded in arguments framing women as additional victims of abortion. Reasoning from that claim, Ziegler believes that conservative state legislators introducing more aggressive abortion restrictions signals that women seeking abortions, no longer idealized by abortion opponents, will become the focus of aggressive prosecutions should Roe v Wade and Planned Parenthood v Casey be overturned with the Dobbs v Jackson Women’s Health Organization decision expected from the Supreme Court this summer.

Ziegler’s analysis suffers from a dearth of critical evaluation of the tactics of abortion advocates. Her myopic focus on the motivations of only one side of the abortion debate leaves her evaluation open to warranted skepticism. It is true the tone with which some pro-life organizations and legislators address women seeking abortions has changed, but that change has not been universal. Even among those embracing this change of tone, the reasons for doing so vary. Seeking moral clarity by centering arguments over the nature of abortion of unborn human life plays a roll. Another factor is the change of tone from abortion advocates who transitioned from talking about the need for abortion to be safe, legal, and rare to calling for women to shout their abortions. Considering those factors and the historical precedent of how and why abortion was prosecuted when it was illegal, it seems doubtful Ziegler’s concern is warranted. If Dobbs v Jackson establishes a new paradigm, it is unlikely to include hunting women down for seeking abortions.

Sloppy Claims about Proposed Laws

Ziegler makes some sloppy claims worth addressing. In order to build the urgency of her observations about the shifting tone, she paints a picture of out-of-control anti-abortion politicians wildly introducing reckless abortion restrictions that no reasonable governing body would have considered only a few short years ago. She states that Missouri is criminalizing abortion for ectopic pregnancies, and that we are seeing a wave of anti-abortion bills across the country.

Missouri is not criminalizing tubal ectopic pregnancy treatment.2 The legislation introduced is intended to prevent pharmacies from providing medicine through telemedical means to women who require direct medical intervention to treat ectopic pregnancy. Remotely providing medical abortion services to a woman suffering from an ectopic pregnancy without a proper exam is dangerous. Representative Brian Seitz, the author of the bill, immediately offered to amend the language to clear up misconceptions. Abortion advocates jumped on imprecisely worded legislation intended to protect women and ran with a preposterous narrative.

The claim that a wave of anti-abortion legislation is crashing down on our nation needs perspective. Ziegler links to a Guttmacher Institute article evaluating the state of abortion legislation in our nation.3 Per that article, as of April 15, 2022, there have been 536 abortion restrictions introduced in 42 states. A comparatively smaller number of 33 restrictive laws have been enacted in just 9 states — hardly an anti-abortion wave. The authors tracked every state abortion bill introduced, dividing them into two categories, restrictive or proactive in preserving women’s right to abortion. The number of proactive measures, those friendly to abortion, dwarfed the number of restrictive bills introduced, 1,453 to 536. This general uptick in legislative action is a natural byproduct of the current political climate on abortion.

A Public Image Problem

Ziegler claims the pro-life shift toward compassion for women came as a response to recognizing a public image problem. She states tactics like physically blocking the entrances to abortion clinics in acts of civil disobedience proved unpopular with the general public, and the murder of doctors who performed abortions by deranged anti-abortion individuals disgusted all morally sensitive people. A public perception of the pro-life movement as insensitive to women forced them to pivot toward a new narrative — love them both. Citing a 1997 pamphlet produced by obstetrician Dr. John Willke and his wife Barbara,4 she paints the picture of a cynical adjustment of rhetorical tactics to incorporate a narrative of loving both the unborn life and the mother who carries it.

The pamphlet does give insight as to why an emphasis on loving the woman moved front and center. The sentiments of the target audience — people undecided on the morality of abortion — changed as a result of successful pro-choice efforts to rhetorically draw attention away from the life of the unborn and toward women’s freedom to control their own bodies. This emphasis resonated with audiences. The pro-life side adjusted their messaging to communicate their position more effectively and highlight something true — that pro-life efforts are driven by intelligent and passionate women who actively care for the needs of other women. Local pregnancy centers, intended to address the felt need for abortion through counseling and providing material resources, far outnumbered politically centered state Right to Life groups. The pro-life movement actively loved women, but this fact was obscured by public preoccupation with direct action tactics, terrible but isolated acts of violence, and messaging that excluded the mother out of an urgency to draw attention to the primary victims of abortion, the nascent human life destroyed.

Ziegler also sees the 1992 Supreme Court decision Planned Parenthood v Casey reaffirming the right to an abortion articulated in Roe v Wade creating a constitutional problem for abortion foes. They needed to abandon failed attempts to stack the court with conservative judges and transition to claiming abortion harms women. The 1990s saw a rise in legal arguments attempting to broaden the ability of states to restrict abortion access grounded in the principle that abortion directly harms women. This emphasis remained prevalent in the 1990s and through the early 2000s.

The change in legal focus could have been driven by a need to develop new strategies in the face of a major loss in the Casey decision, as Ziegler claims. However, an easier explanation exists: pro-life advocates genuinely believe abortion harms women. Abortion foes cited studies originally produced in the 1990s addressing connections between abortion and an increased risk of breast cancer and other physical harms.5 Abby Johnson6 and Linda Couri,7 who both worked with Planned Parenthood, openly share negative experiences, their own and others, related to past abortions. The evidence suggests those seeking to restrict abortion believe these harms are real. The omission of these concerns in current legal strategies does not signal that they reject the idea abortion harms women, but that arguing for that position may no longer be seen as the best approach to win in the courts. It signals yet another shift in public strategy, not a shift in belief.

From Safe, Legal, and Rare to Shout Your Abortion

The pro-choice movement made their own change in messaging over the past 10 years.8 In 1992, then presidential candidate Bill Clinton expressed his desire for abortion to be safe, legal, and rare. This messaging resonated with a public divided on abortion and remained a Democratic talking point through Hillary Clinton’s 2008 presidential campaign. Then abortion advocates began to take exception with the idea abortion ought to be rare. They argued that the language stigmatized women who had abortions. In 2012, the language was removed from the Democratic National Committee platform. In 2015, abortion advocate Amelia Bonow shared her positive feelings about her own abortion in a Facebook post, encouraging others to do the same.9 This launched the “Shout Your Abortion” movement, triggering an outpouring of social media posts from women openly celebrating their abortions. By 2017, Ashley Judd is reading poetry from the stage at a National Women’s March in Washington, D.C., declaring herself a Nasty Woman, and women are wearing clothing expressing the sentiment “I Love Abortion!” The pro-life language may have transitioned away from treating women as innocent victims of abortion because pro-choice advocates made their point loud and clear.

Prosecuting Women for Abortion Is Unlikely

There are people within the broader anti-abortion efforts who would like to see women who get abortions criminally prosecuted for murder, but they tend to be outliers. Bills reflecting their views fail to win broad support. High profile national pro-life groups such as Live Action, Students for Life of America, and Abby Johnson’s And Then There Were None, as well as regional organizations like Protect Life Michigan, are run by women with a focus on helping and loving women facing unplanned pregnancies. Local pregnancy resource centers still serve the needs of women in communities across the nation. Whatever Ziegler’s perception is, there has been no wholesale movement to cast women as villains.

Nor is there any reason to believe women will face aggressive prosecution should Roe v Wade be overturned. As legal scholar Joseph Dellapenna has argued, historically, for both pragmatic and legal reasons, prosecutors have rarely charged women in abortion cases.10 No prosecuting attorney wants to drag a woman in front of a jury of her peers and make the case she ought to be treated as a murderer, particularly as juries have historically been reluctant to hand down convictions on abortion. Even if such a jury existed, proving the case raises even more difficulties. How could prosecutors demonstrate the fetus was alive and the cause of death was abortion?11 Abortionists, not women, were the targets of most prosecutions.12 The best testimony against abortionists came from the women receiving abortions,13 and prosecutors are unlikely to get that testimony if they aggressively pursue women with criminal charges. Despite Ziegler’s apprehensions about proposed laws, it is difficult to imagine any of these pragmatic and legal factors radically changing enough such that women need to fear prosecution.

Like too many other voices in the current public debate, Ziegler sees only the worst in her political rivals. She appears too distracted by anti-abortion outliers to see that, whatever the current public messaging or legal reasoning offered to restrict abortion is, the broader pro-life movement continues to love women and families facing unplanned pregnancies in actual practice. We can all hope the same compassion that drives pro-life advocates to protect unborn human life will continue to fuel efforts to love women and families facing unplanned pregnancies. All human life ought to be treated with dignity and respect, including women seeking abortions.

Jay Watts is the founder and president of Merely Human Ministries, Inc., an organization committed to equipping Christians and pro-life advocates to defend the intrinsic dignity of all human life.

 


NOTES

  1. Mary Ziegler, “Anti-Abortion Groups Once Portrayed Women as Victims. That’s Changing,” New York Times, March 19, 2022, https://www.nytimes.com/2022/03/19/opinion/abortion-laws-bans-missouri.html. She is also the author of  Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).
  2. Jason Wert, “Seitz Responds to Critics of Abortion Bill,” Branson Tri Lakes News, March 18, 2022, https://www.bransontrilakesnews.com/news/local/article_e8881adc-a6d5-11ec-bc80-876765449aea.html.
  3. Elizabeth Nash, Lauren Cross, John Dreweke, “2022 State Legislative Sessions: Abortion Bans and Restrictions on Medication Abortion Dominate,” Guttmacher Institute, April 15, 2022, https://www.guttmacher.org/article/2022/03/2022-state-legislative-sessions-abortion-bans-and-restrictions-medication-abortion.
  4. John and Barbara Willke, “Why Can’t We Love Them Both?” University Faculty for Life, 1997, http://www.uffl.org/vol%207/willke7.pdf.
  5. “Abortion Hurts Women Physically,” Heartbeat International, 1997, https://www.heartbeatinternational.org/pdf/physical_risks_factsheet.pdf.
  6. Abby Johnson, “Myth Busted Series — #10: Women Don’t Regret Their Abortions,” Facebook, November 16, 2020, https://www.facebook.com/watch/?v=2716846375245351.
  7. Iowans for Life, “From Dissonance to Restoration,” Pulse Life Advocates, December 11, 2020, https://pulseforlife.org/2020/12/linda-couri/.
  8. Anna North, “How the Abortion Debate Moved Away from ‘Safe, Legal, and Rare,” Vox, October 18, 2019, https://www.vox.com/2019/10/18/20917406/abortion-safe-legal-and-rare-tulsi-gabbard.
  9. Alison Williams, “Amelia Bonow Fights for Abortion Rights with Pills,” Seattle Met, March 3, 2022, https://www.seattlemet.com/news-and-city-life/2022/03/amelia-bonow-abortion-rights-pills-roe-wade-washington-state
  10. Joseph Dellapenna, Dispelling the Myths of Abortion History (Durham: Carolina Academic Press, 2006), 532–538.
  11. Dellapenna, Dispelling the Myths of Abortion History, 433.
  12. Dellapenna, Dispelling the Myths of Abortion History, 533–535.
  13. Dellapenna, Dispelling the Myths of Abortion History, 433–437.
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