Sunday, May 19, 2019

Meanwhile, in Alabama...

Alabama's new abortion law, legally, is extremely problematic; but there's one big problem Alabama lawmakers may not have considered.  It probably violates the Alabama State Constitution.  Why?

It fails to criminalize the women who have abortions.

The ruling of the Alabama Supreme Court in Ex Parte Ritter, a case decided in 1979, is clear: "[A]ll persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals."  Not merely "present" at their abortions, women are the initiators of the felony defined by the new law.  If their doctors are subject to sentences of up to 99 years, those women must be subject to the same penalties.

Other states, like Georgia, have not made the same mistake — but, needless to say, have downplayed the fact that recipients of abortions can expect time in prison.  While the religious fanatics behind the war on abortion may not be bothered by that fact, plenty of their fellow travelers will be encouraged to think twice.  Politically, jailing women who have abortions is a losing proposition.

Conservative states already are jailing women for behaviors that potentially endanger an embryo or a fetus.  Most often, those behaviors involve use of controlled substances; so they enjoy little sympathy from the general public.  Jailing a 14-year-old for aborting Daddy's baby is sure to provoke a far stronger response.

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