Republicans in the Louisiana House advanced a bill on Wednesday of last week that would classify abortion as homicide and allow prosecutors to criminally charge patients, with supporters citing a draft opinion leaked this week showing the Supreme Court ready to overturn Roe v. Wade.
The legislation, which passed through a committee on a 7-to-2 vote, goes one step further than other antiabortion bans that have gained momentum in recent years, which focus on punishing abortion providers and others who help facilitate the procedure. Experts say the bill could also restrict in vitro fertilization and emergency contraception because it would grant constitutional rights to a person “from the moment of fertilization.”
Discussing the legislation less than 48 hours after the leaked Supreme Court draft proposing to overturn the 1973 ruling that has protected abortion rights, lawmakers and advocates who spoke in support of the bill appeared energized by the prospect of a long-sought imminent victory. One advocate who helped draft the bill specifically cited the draft opinion.
“The Supreme Court is poised to ignore Roe versus Wade,” said Bradley Pierce, executive director of the Foundation to Abolish Abortion.
He appeared at the committee hearing with the bill’s sponsor, state Rep. Danny McCormick (R).
“We’ve been waiting 50 years to get to this point,” McCormick said.
Chief Justice John G. Roberts Jr. confirmed on Tuesday that the draft opinion was authentic but emphasized that the decision written by Justice Samuel A. Alito Jr. was not final.
If the Louisiana bill passes the Republican-led House and Senate, it would head to Democratic Gov. John Bel Edwards, who has supported antiabortion legislation in the past.
Although the antiabortion movement has traditionally embraced policies that claim to protect both the woman and the fetus — and avoided laws that criminalize those seeking abortions — abortion rights advocates worry that could change if Roe is overturned. Without the long-standing court precedent to temper state legislation, experts and advocates say, antiabortion lawmakers may begin targeting patients, especially in cases of medication abortions where pills are obtained by the patient illegally online.
“For legislators in the movement, their agenda is to stop abortion,” said Mary Ziegler, a visiting professor at Harvard Law School specializing in the history of abortion law. “When there is a conflict between punishing pregnant people and stopping abortion, it’s clear what they’re going to do.”
Medication abortion presents a particular challenge to antiabortion lawmakers, Ziegler said. If a patient orders abortion pills illegally online from outside the country, she added, the patient could be the only person for lawmakers to hold responsible.
Louisiana is one of 13 states that has a “trigger law,” which would make abortion illegal as soon as Roe is overturned. But antiabortion advocates on Wednesday said legislation did not go far enough.
“I know we have a trigger law,” said Brian Gunter, a pastor who helped draft the bill. “It says that abortion providers have to pay a $1,000 fine … that is woefully insufficient.”
At the committee hearing, several abortion rights advocates tried to sound the alarm.
“I just want to sort of level-set here first: This is a homicide statute,” said Ellie Schilling, a New Orleans-based attorney who represents abortion rights groups. “What this bill does is to specifically amend the crime of homicide and the crime of criminal battery to enable the state to charge people, including the pregnant mother, at any stage of fertilization.”
The antiabortion movement developed a reputation in the late 1980s and early 1990s for being “anti-woman,” said Ziegler, as antiabortion advocates became known for their violent tactics at abortion clinics, establishing blockades and, in a few cases, murdering providers. The media broadcast videos of women crying as they tried to get past protesters and access abortion care, Ziegler said, which did not play well for the antiabortion movement.
“Americans have usually been pretty unhappy about the idea of punishing patients,” Ziegler said.
After that, antiabortion advocates started to emphasize “pro-woman” policies aimed at protecting women’s health, Ziegler said, with leaders beginning to use slogans like, “Love them both.”
Since then, she said, there has been very little legislation targeting abortion patients. When Lizelle Herrera was charged with murder for a self-managed abortion in South Texas last month, for example, antiabortion groups quickly distanced themselves from the situation. The murder charge against Herrera was later dropped.
“The Texas Heartbeat Act and other pro-life policies in the state clearly prohibit criminal charges for pregnant women,” said John Seago, the legislative director of Texas Right to Life, referring to the Texas law that allows private citizens to sue anyone who helps facilitate an abortion after six weeks of pregnancy.
While some in antiabortion circles occasionally discuss the idea of punishing abortion patients, Ziegler said, that idea has not gained much traction.
“To see a bill like this moving through a state legislature is definitely new,” she said.