WHAT IF THE Supreme Court overrules Roe vs. Wade by allowing South Dakota's new abortion statute to pass constitutional review? Abortion, which has been governed in our time by constitutional law, again would be a matter of criminal law. The chief question would be: Who goes to prison?
South Dakota's legislators included this language in their new law: "Nothing in this act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty." If abortion is a crime, why excuse the woman from punishment?
In the century or so before Roe vs. Wade, when criminal abortion laws were abundant in the United States, legislatures often explicitly exempted the woman's behavior from abortion statutes. When they did not, prosecutors and courts found ways to avoid punishing the woman.
In those days, such moves were justified by rationales such as this, from the Connecticut Supreme Court in 1904: "The public policy that underlies this legislation is based largely on protection due to the woman, protection against her own weakness as well as the criminal lust and greed of others. The criminal intent and moral turpitude involved in the violation, by a woman, of the restraint put upon her control over her own person is widely different than that which attends the man who, in clear violation of the law, and for pay and gain of any kind, inflicts an injury upon the body of a woman endangering health and perhaps life."
Surely the South Dakotans won't offer such a justification now. Society and the law have entombed the idea that women are weaker of will and less responsible than men. Justice William Brennan, writing in a landmark 1973 case about gender discrimination, stated the modern view: "Our nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage."
As for the Connecticut court's desire to protect women, science has rendered outdated concerns that abortion prohibitions might be necessary to protect women against hazardous medical practices.
