Friday, April 14, 2006

Eric Zorn and forensic vagina inspections

The Chicago Tribune’s Eric Zorn has challenged me to a blog duel regarding his piece, "Women in prison – a ‘partial-birth’ abortion issue for the left?"

Eric is excited to have found a wedge issue that might outdo the pro-life movement’s foremost wedge issue, partial birth abortion, which he admits is “grisly” and “repulse[s] even many who favor abortion rights,” although he supports it.

Eric based his piece on an April 9 New York Times piece entitled "Pro-Life Nation."

Writer Jack Hitt traveled to El Salvador, where abortion is illegal and aborting mothers are prosecuted, and arranged clandestine meetings with frightened women and the back alley (although noble) hacks how aborted them.

The reason for such a piece is clear: to frighten U.S. women that soon “forensic vagina inspectors,” as they are called in El Salvador, will come pounding on their doors if Roe v. Wade is overturned.

Pounced Eric:

You’d think that anti-abortionists would be celebrating the example of El Salvador – hailing it as a beacon of moral enlightenment and hopefully proclaiming the day when, say, South Dakota (where lawmakers voted last month to ban all abortions, even in cases of rape or incest) imposes extended prison terms on the women at whom they now yell “baby killer!” outside of abortion clinics.

But no. In fact, if you bring up the idea of the law actually treating abortion like murder, most anti-abortion activists stammer and circumlocute, terrified of the question.

I may be terrified, but only about that word, “circumlocute.” I had to look that one up.

Before answering, I must correct Eric that the South Dakota law solely criminalizes abortionists, not women. Not that Eric would attempt to create false hysteria.

Recapping, Eric’s two proposed wedge issues are:

1) If and when Roe v. Wade is overturned, won’t aborting mothers in the U.S. become hunted criminals?

2) If pro-lifers think abortion is murder, don’t they want aborting mothers to become hunted criminals?

The way to answer this is to work backward. What do state abortion laws say that were nixed when Roe v. Wade was decided and will be restored if and when Roe v. Wade is nixed?

I asked Clarke Forsythe, lead attorney at Americans United for Life and an expert on the history of abortion law. He responded:

The rule in virtually all the states was that doctors were prosecuted as the perpetrators of the crime. I don’t know of any prosecution of aborting women in the 20th century. The only way in which women could have been potentially prosecuted would have been for soliciting an abortion, meaning going to an abortionist or a doctor and saying, “Will you do one?” But men and women were treated equally under those rules, and I don’t even know of a solicitation prosecution against women.

Why would pro-lifers not want to see women prosecuted in the future? Clarke, again:

We are interested in reducing abortions, not maximizing prosecutions. Doctors are the ones who perform the abortion, and they are the ones who are the principles in the crime. In addition, to make the law effective, women’s testimony is necessary to effectively prosecute the abortionist, and if you treat the woman as a principle or accomplice, you can’t use her testimony.

Women have been treated as the second victim since the second half of the 19th century. There’s no reason to question that today.

I also asked Clarke what would happen in Illinois if Roe v. Wade were overturned.

Clarke said the pre-Roe abortion law in Illinois has been repealed. Abortion would be legal in Illinois the day after that, at least up to viability if not throughout pregnancy. And like all others, Illinois abortion law targeted the abortion performer, including nondoctors.

Back to you, Eric.

25 comments:

Bill Baar 9:49 AM  

This is good and necessary debate.

The kind of debate judges cut off with Roe v Wade.

Jeff Trigg 10:53 AM  

"Women have been treated as the second victim since the second half of the 19th century. There’s no reason to question that today."

Sure there is. Women couldn't vote at that time. They couldn't serve on juries, they couldn't be judges or lawyers or elected to public office or even own property in many states. The mindset towards women was completely different. They weren't smart enough to know what they were doing. It wasn't their fault they had an unwanted pregnancy. They were victims not capable of coping with something important. I'm sure that anti-woman sentiment stuck with the laws until Roe.

I see it as a horrendous double standard to prosecute abortion providers and do absolutely nothing to the individual creating the demand for the abortion. Forget about taking Under God out of the pledge, this would be taking out And Justice For All. I won't be voting guilty as a juror on any related trials.

But what if an individual tries to perform an abortion on themselves? Would she be prosecuted? If she didn't get the coat hanger just right and needed medical care, would doctors be forced to notify the authorities?

This is certainly better than calling for the death penalty for women, but it isn't at all fair and does not conform to current laws for murder. I'd say the woman getting an abortion is just as culpable as the get away driver at a robbery where someone is shot and killed. That is if you think abortion is murder by legal standards.

Very interesting information though. If women aren't prosecuted for having an abortion, then I guess it's only kind of a little bit murder for the doctors and self defense for the women. This doesn't equate at all with what our society otherwise considers murder.

(The snark is just how I make a point and it's not personal.)

Jill Stanek 11:24 AM  

Jeff, 10:53a: No offense taken. I appreciate the discussion.

We are talking beyond the 19th century re: how the states treated women and abortion. We're talking state law up to January 21, 1973, that will go back into effect if and when Roe v. Wade is overturned. Therewith, Clarke's point makes perfect legal sense.

If you read the entire Jack Hitt article, he admits that even in El Salvador:

~ "Typically, the woman can avoid prosecution altogether if, after she is arrested, she names the provider."

~ "My impression was that [El Salvador prosecutor Flor Evelyn] Topez was emphasizing... leniencies... for women who report the abortionist, because, like most people, she was uncomfortable with the inevitable logic that insists upon making a woman who has had an abortion into a criminal."

~ "Even Regina de Cardenal, whose group was instrumental in passing the ban, could not quite square the circle. 'I believe the women is a victim,' de Cardenal told me. 'The criminals are the people who perform the abortions.'"

Hitt reported another fascinating fact: "For the most part, the new law has not resulted in a spike in horror stories of painful and botched clandestine procedures.... [T]here as been a decline in the incidence of harrowing coat-hanger/pesticide-type abortions in the time since the law was passed." [in 1998]

Jill Stanek 11:31 AM  

Skeeter, Since you obviously have no self-restraint, I'm going to help you hold to your promise of February 19, 4:03p, which was, "I'm not responding to your posts anymore." Scram.

Skeeter 11:45 AM  
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Anonymous,  11:51 AM  

Well, I guess good Friday is the appropriate day to discuss the depressing topics of the world.

Anonymous,  12:37 PM  

Ha! Jill 1 Skeeter 0...I love it!

Skeeter 12:47 PM  
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Jeff Trigg 1:17 PM  

Thank you Jill.

Where Im coming from is I was born in 1970 and don't know what it was like before. I like to think I separate my views on abortion between my moral opposition to it, and my legal support of it. An analogy would be the first commandment. One can believe that is a moral they need to live by, while also believing it should not be the law for everyone else.

My one point was that whatever the current laws were in 1973, they were probably heavily influenced by our history of the legal treatment of women. You also cite Catholics, which regarding women.. I won't go there.

For me, I just can't see how our justice system could punish the doctor but not the woman if we decided abortion would be illegal. It's not logical when compared to how we deal with one individual killing another. And I just can't see the woman as the victim from any angle.

Right now, I think it is wrong for a woman to have an abortion. Easy for a guy to say. But if we make it illegal and don't punish the woman for having an abortion, to me it seems like the law is saying it ISN'T wrong for a woman to have an abortion. I just don't get it and probably never will.

How can those that want abortion made illegal, also hold the view it isn't wrong for a woman to have an abortion? Saying it's the doctor's fault, not the woman's to me is ridiculous. Of course it is the woman's fault. One argument I heard to explain this break in logic was that this is how we treated women in the 19th century. The other argument came from an organization and country that still treats women similar to how they were treated in the 19th century. I'd like to hear a logical argument for why it is the doctor's fault and the woman has no or very little responsibility in the matter.

Jeff Trigg 1:21 PM  

Because I can't find the logic to that, it only makes sense that if we make abortion illegal, then we have to punish the woman who have them.

What does make sense, is that this position of not punishing the woman is a political compromise in order to help the majority be more comfortable with outlawing abortion. I have never heard someone honestly say they don't want to punish the woman for political reasons, but it makes the most sense to me.

But admitting a willingness to compromise for political reasons on the view that abortion is murder and doctor's who perform them are baby killers would destroy credibility it seems.

grand old partisan 1:35 PM  
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Skeeter 1:38 PM  
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grand old partisan 1:58 PM  
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Anonymous,  2:49 PM  

Skeeter is welcome to post his comments on this topic over at my blog, as long as he keeps them clean. I'll be replying to Jill there momentarily.

Anonymous,  3:36 PM  

I've posted my response. Click on my name for the link (I hope)

Anonymous,  6:29 PM  

These arguments always dissolve into semantics of relativism. The pro-choice argument always devolves into sympathy for the mother of an unwanted child.

The question, rarely admitted to by the pro-choice movement is the simple question

Is it human life?

Is not abortion the murder of human life? How do you wish to treat those who kill human life?

Yellow Dog Democrat 10:48 PM  

Jill is absolutely right. In America, we prosecute murderers, not the people who hired them to kill or transported the victim to the murder site.

Jill, you're a nurse, I say if you want to save lives, who stop at abortion? Let's make medical negligence a crime. Then we could lock up 98,000 doctors a year for reckless homocide and book their nurses for conspiracy.

Seriously, I admire your resolve, but even William Jennings Bryant couldn't make this argument work.

Yellow Dog Democrat 11:22 PM  

Anon 6:29 -- is an acorn an oak tree? If we call an acorn a tree enough times, does it make it true? Simply put: no.

The pro-choice argument does not devolve into sympathy at all. It rests solidly on the belief, embodied in the Bill of Rights, that there must be limits on goverment's power to interfere in our private lives. By "private", I mean as opposed to public, as in the public square. Or, more precisely, as the great sociologist John Dewey defined it in "The Public and It's Problems."

Yes, those limits are not absolute. But the greater invasion in to our privacy, the greater the burden on the state to justify the public's interest in that invasion beyond a reasonable doubt.

No one can deny the great invasion that abortion bans impose on pregnant women and their liberty. For nine months, you no longer have control over your own body, the government does. Every pregnancy carries some risk of physical harm or death for the woman. And depending on the circumstances surrounding the woman's pregnancy (1 in 4 women are sexually assaulted in their lifetime), the emotional scars can last far longer than labor.

Given the extreme taking of our liberty and the wide range of disagreement about when exactly human life begins, or what the phrase "human life" actually means at the extreme ends, the state cannot meet that burden. "Better safe than sorry" simply isn't good enough. Can you imagine if we locked people up in jail, who we weren't sure committed a crime, just because of "better safe than sorry"?

Yes, the arguments can get emotional at times. But let's not forget that the pro-life movement uses emotion just as effectively, if not more so. That's why they love to include pictures of fetuses whenever possible (or the nodding brain-dead corpse of Terry Schiavo at the other extreme end -- funny how we stopped talking about Terry since we found out her brain was 85% pudding). It's why they repeat the word "innocent" over and over again, even though if they were true Christians, they would know that none of us is truly "innocent" because we are all born with Original Sin. You see, anon, "Innocent" is at best a relative term, and so your argument comes full circle.

Anonymous,  11:40 PM  

Jill!! I am so excited... I hear you are coming out to the University of Illinois at Springfield!!

WOO HOO.

Jill Stanek 4:22 AM  

Anon, 11:40a: Yes, April 26. Looking forward to it.

YDD, 11:22p: There is no "wide range of disagreement about when exactly human life begins." Blackmun tried that line in 1973, and today even abortion proponents find fault with his illogic.

Even if so, science has come a long way, baby. You can see human life begin in a petri dish, hence the argument over embryo destruction.

To deny knowing when human life begins is to purposefully remain ignorant.

Another sign of ignorance: If you're uncertain when human life begins, why do you promote abortion?

Further, you treat pregnancy like a plague or a parasital invasion, when it is a sign of good health.

Finally, I find it fascinating that pro-aborts apparently want to force pro-lifers to prosecute mothers if and when Roe v. Wade is overturned.

The fact that pre-Roe American abortion law focused on abortionists and post-Roe pro-lifers are satisfied with pre-Roe law demonstrates at least two things: We're not stupid and we're not mean.

In El Salvador, even abortion-sympathizer Hitt had to report: "For the most part, the new law has not resulted in a spike in horror stories of painful and botched clandestine procedures.... [T]here as been a decline in the incidence of harrowing coat-hanger/pesticide-type abortions in the time since the law was passed [in 1998]."

In the event Roe is overturned, is that not something you'd like to see, YDD?

Bill Baar 6:42 AM  

If abortion is criminalized, it seems logical to make the abortionist the criminal. Not the person having the abortion. That seems perfectly logical.

I don't buy the pro choice argument about the right to privacy.

Abortion is about the fetus's right to mature and live, and the risk a woman takes to give life to the child.

Docs face decisions about this conflict all the time. The famous example being Dr Koops decision to save one of cojoined twins. Only one child could be saved in surgery because they shared a heart. Koop made that decision instantly.

Abortion shouldn't be a form of after the fact of conception birth control. The fetus has a right that should be respected. It should, I believe, be a right found at conception because Jill gave us the example of tangled the law can get when it grants this right at some point in developement with the born alive act. There you had Docs really within seconds or inches of being murders simply because the law was screwy on when life began.

If the law finds life begins at conception and abortion made illegal, the only exceptions should be the life and welfare of the mother, the risks she takes in carrying the child to term, and I would consider the pyschological damage of carrying a child conceived in rape or incest... only then would abortion be allowed.

Worth noting, I was the Medicaid auditor in the State of Wisc and one of my jobs was to review CPT codes to make sure there was no Fed reimbursement of voluntary abortions... in fact there were plenty of natural abortions i.e. miscarriages and it was bascially the coders choice if I could figure it out.

Anonymous,  7:16 AM  

The "Pro-Life until they're born, then they're someone else's problem" crowd, as always wants it both ways. Abortion is either murder or it isn't. If it is, no reasonable person could argue that the person seeking to "murder" their fetus is not criminally culpable. There is no logical explanation for the abortion provider to be the only party guilty if one believes abortion is murder, but the anti-choice thought police know that their real intent, to round up all those "promiscuous women" who think they have a right to decide for themselves, would be too over- the-top even for them. Stanek and her ilk would like to have you believe that women who have abortions are just a bunch of poor, naive waif's, forced or tricked into abortion by the evil abortion providers. That's the cover they use to justify violence against abortion providers, and the cover they use here.

And of course there is a wide-range of disagreement over just when human life begins, and anti-choice demagogues burying their heads in the sand and claiming that's not the case, doesn't make it so.

Yellow Dog Democrat 12:44 PM  

Jill, if you don't think there's a wide disagreement about where life begins and ends, you need to read more, starting with the newspaper.

Or have you forgotten Terry Schiavo? Quick Jill: was she alive or dead?

These are questions not just of science, but also of faith and philosophy. Questions that lack a definitive answer in many cases.

Yes, there is a debate about embryo destruction, but it is a small and loud minority who object. When you are standing in the front of the line to have these so-called humans implanted in your uterus, so they can realize their full potential, I'll take your argument seriously. Until then, I say you and everybody else in your camp is a hypocrite.

So, prove me wrong Jill. Take up a collection from all of your petri dish hugging friends, and put your uterus where your mouth is.

Regardless, the other posters here are right. You cannot claim that abortion is murder, but women who elect to have an abortion have not committed a crime. It's a pragmatic political and moral solution, but legally it falls on it's face, and we are a nation of laws.

Anonymous,  6:36 AM  

This is indeed a watershed moment!

Addicts..you are now "victims" and should not be prosecuted. Kill someone while driving drunk? Sorry barkeep...he walks - but you, my friend, are doing hard time.

Come on. The historical precedent argument is hollow -- an inartful dodge. A crime is a crime and a criminal is a criminal.

zuludogm 5:21 AM  

Jill's logic is specious at best and cynical at worst. She is placing too much trust in government. As soon as the laws are passed, a politically ambitious DA or prosecutor will cross this "line" between the "victim" and the perpetrator.

The fear of Forensic Vagina Inspectors (or FVI) is real, but it underscores two fears:
1) Fear of invasion not only of privacy, but of control over our most intimate privacy
2) Fear of the post-choice world that we will create.

* The fact that the woman is not seen as the criminal in some states, does not mean that she won't be in all states. This is a "trust us" statement from the anti-abortion movement. This raises concerns on cynicism. Not that either political party is trustable, but the ones behind this legislation have a pretty dark record on trust at the moment.

* The fact that the woman is not the subject of a criminal investigation does not mean that she is not going to be extensively examined and probed. She holds potential evidence in the prosecution and let's not presume trust on an aggressive and politically ambitious prosecutor that he would not be so indecent as to order her to submit to pelvic examinations from the government. This has recent precedence. In Kansas, DA, Phil Kline subpoenaed abortion clinic medical records in order to convict a pedophile. The pursuit of the BTK murderer involved the subpoena of his daughter's pap smear. Where there is evidence of a crime, it will be gathered by the prosecution - this is something we can trust absolutely.

Likewise, can you reasonably expect a defendant in a case to waive his/her right to submit these "victims" to examinations? You see, the "woman as victim" philosophy equates abortion to rape. Do rape victims have to submit to examinations and invasions of intimate privacy today? Yes, they do - it's what rape victims refer to as "the second rape". They refer to the court trial as "the third rape". It is very real, very frightening and emotionally painful and takes a long time to recover from. At least in rape, the woman has a real and emotionally powerful incentive to see the perp convicted.

An honest portrayal will does not view the woman as a victim because she does not see herself as a victim. She will, therefore, perceive the government attention and probing into her vagina as oppressive. If the movement has considered this and dismissed it, it is cynical. If they have never considered this, it is Rumsfeldian Optimism.

* The fact that the woman is not the subject of a criminal investigation does not mean that she is not a criminal. Is it not a crime to have provable knowledge of a crime and to withold it? That is a crime. The woman is a witness to a murder, no less. She is more than just a witness - she is a participant, but we are choosing (enjoy our new choice) to ignore that inconvenient fact. We cannot trust that her culpability will not be exploited by the prosecutor in order to force her to submit to inspection.

The post-ban world would not be the pre-choice world. Nearly everything is different.

The Interests are Different - in pre-Roe days, the anti-abortion movement was not a movement. There were few compelling interests compared to today.

My anti-abortion friends are not invisioning the gentle days of pre-Roe. What they describe to me is a full-court press. Their ambition is not to hide abortion from site - it is to stop abortion. They did not fight this long fight for a decision, a party and retirement. They want to drive abortion to zero.

When I point out to them that if they do reduce abortions it will be almost exclusively among the poor, they are ready. They see early home pregnancy tests as an unnecessary and dangerous convenience that could be misused in such a way as to make the woman a victim of abortion. They would instead prefer to see a formal process of recognizing the fetus. A registration - a conception certificate, if you will.

In that Orwellian dream, a woman would have a hard time becoming a victim of abortion undetected. There would be a cerificate of conception, followed by a trip to Canada, followed by nothing. A perusal of medical records or testing center records would pick up the discrepancy and then there would have to be an explanation - an investigation. They will root out the culprit, but must do so through the "victim".

The Methods are Different - To compare pre-Choice days to post-Ban days, you must consider the illegal drugs trade.
We have a far more practiced and sophisticated illegal subtance supply chain and market that is very capable of delivering RU 486 and Mifipristone. Through the enforcement of the ban on illegal drugs, the drugs supply chain has become extremely sophisticated. While we have had successes in stopping the sale of illegal drugs, we have not actually stopped it and with each success, the supply chain has gained an object lesson by which to adapt.

The post-ban world will more likely increase revenues and profits into the illegal drugs trade. This will strengthen them in ways that will have a knock on effect to the drug law enforcement effort. This will take our drugs tragedy and extend it - we are far more likely to invision a world that has more petty criminals in jail with ruined lives while there is a growing, sophisticated and evolving underground abortion drug market.

Regardless of what the now politically managed FDA may say, RU 486 is safe if taken under medical supervision. The drug dealers will probably lack any medical training. Again, this new world will be hopeful and bright only with Rumsfeldian Optimism.

The Legal Environment is Different - The bright line of Conception as Life (CAL) is novel compared to the pre-choice era.
The previous laws were not enforced or tried with this precedent. The new laws will be. This line, which is marketed as being bright, is no brighter than the current line of Birth as Life (BAL). It is right and reasonable to say that an ectopic pregnancy is life if CAL is the basis. This also pushes a lot of current law into a woman's vagina. I cannot imagine living in such a world.

What is amazing is that this comes from the party that sells a philosphy of reducing the size of government. How big will government get in order to enter the vagina? The answer is well known and accepted by skeptics as well as cynics.

As big as it wants.

The post-ban era will be as wonderful as we can imagine it so long as we only imagine it - like post-Saddam Iraq.

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