During Tuesday night’s vice presidential debate, Republican Mike Pence challenged Democrat Tim Kaine on how Kaine, as a Catholic, can be pro-choice and support Hillary Clinton’s agenda.
Kaine responded that we should “trust women” to make their own moral choices, and added that the Trump-Pence ticket “wants to punish women” who have abortions.
“Donald Trump and I would never support legislation that would punish women who make the heartbreaking choice to end a pregnancy,” Pence said.
“Then why would he say that?” Kaine challenged.
“Look, he is not a polished politician like you and Hillary Clinton,” Pence replied.
There are a couple of things to sort out here. First of all, as Pence acknowledged, Trump did in fact say in a March interview with Chris Matthews that if abortion were outlawed, there would have to be “some form of punishment” for the women who have them. Trump frantically walked it back, and ended up taking five different positions on abortion in three days, but punishment was his initial stance.
But more important than what Trump did or didn’t say in that interview is what he and Pence say they will do about abortion.
Trump has said he’ll nominate pro-life justices to the Supreme Court who would overturn Roe, and he could have the chance to nominate as many as four.
The extreme anti-abortion bills that Pence has pushed, both in Congress and as governor of Indiana, would have arguably “punished” women who sought abortions in a wide variety of ways — from forcing women to cremate or bury the remains of an early miscarriage, to letting women die if they had a life-threatening pregnancy complication in a Catholic hospital that refused to perform a medically necessary abortion.
And if that happened — whether abortion were outlawed or more heavily criminalized in America — there’s no denying that women would indeed face criminal punishment, regardless of what lawmakers intended.
That’s because even today, when abortion is supposed to be legal in America, women can be arrested or jailed on suspicion of self-inducing an abortion — most famously last year in Mike Pence’s own state of Indiana.
The mainstream pro-life movement says women wouldn’t be criminally punished if abortion were outlawed
The idea of prosecuting women for having abortions is definitely not something the pro-life movement is willing to publicly advocate.
Pro-life leaders were quick to condemn Trump’s initial comment about “punishment.” "Mr. Trump's comment today is completely out of touch with the pro-life movement and even more with women who have chosen such a sad thing as abortion," said Jeanne Mancini, president of the March for Life Education and Defense Fund, in a statement at the time. "No pro-lifer would ever want to punish a woman who has chosen abortion."
Mainstream anti-abortion advocates usually insist that women should not be thrown in jail for having abortions because they are, in fact, "second victims" of the procedure. These advocates maintain that women won't go to jail if abortion is made illegal again. Instead, anti-abortion laws target doctors who perform the procedures.
But women can already be prosecuted for abortion in America
It's true that the abortion restrictions on the books right now mostly target doctors. But it's unfortunately not true that women would never be thrown in jail for abortion in America. Even after Roe, women who have miscarriages but who are suspected of self-inducing an abortion outside of a doctor's care sometimes face criminal charges.
Last year, Purvi Patel of Indiana was the first woman to be sentenced to jail in the US for the crime of "feticide" for allegedly terminating her own pregnancy. She was sentenced to 20 years in prison, but that conviction was later overturned and Patel was released on 18 months of time served.
Patel was not the first woman criminally charged, nor was she the last. National Advocates for Pregnant Women has documented hundreds of cases of women whose pregnancy outcomes have led to their criminal prosecution.
The charges vary from manslaughter to "improper disposal of fetal remains." Anna Yocca was initially charged with first-degree murder late last year for giving herself a coat hanger abortion in Tennessee, but prosecutors have dropped those charges. They still might charge her with aggravated assault, though, and she's been sitting in jail since December.
This happens even in states that explicitly prohibit criminal charges against women for ending their own pregnancies. And since many women will try to self-induce an abortion if no other legal alternative is available, it’s hard to imagine a world where abortion is outlawed but women are given a free pass to try to do it themselves.
What a Trump-Pence administration would, and could, actually do on abortion
Trump wrote a letter to pro-life groups in September that made several specific promises — all of which read like an essential wish list for the pro-life movement.
Some of these policies would make abortion and contraception less accessible. And others could actively outlaw abortion in America, especially if Trump presides over a Republican Congress:
- Trump will appoint Supreme Court justices who would vote to overturn Roe v. Wade. This is the biggest deal when it comes to Trump’s actual personal power to influence reproductive rights policy if elected president. Whoever wins this election could end up appointing as many as four new Supreme Court justices as the current justices age or retire, which could shape the Court’s ideology for decades to come.
- Trump promised to sign a 20-week abortion ban — which could also help overturn Roe v. Wade. Congress has tried and failed to pass a national 20-week abortion ban in the past, but it could very easily become law if Trump is president and if Republicans have big enough majorities.
Supporters of 20-week abortion bans make the scientifically unsupported claim that fetuses can feel pain at 20 weeks — but it’s no secret that Republicans and anti-abortion advocates also want to pass these bills because they contradict Roe v. Wade, and could form the basis of a direct Supreme Court challenge. (Roe protects a woman’s right to an abortion before a fetus is viable, which doesn’t happen until well after the 20-week mark.)
In other words: Trump wants to nominate Supreme Court justices who would be willing to overturn Roe, and then sign the bill that would give them the chance to do exactly that.
- Trump will pursue policies that would make abortion, and other reproductive health care like contraception, more expensive and harder to come by. Trump promises that he is committed to defunding Planned Parenthood and “re-allocating their funding to community health centers.” But as Vox’s Sarah Kliff explained, Planned Parenthood plays such a pivotal role in women’s reproductive health care that it’s just not realistic to expect community health centers to take over for it — and that means a lot of people would lose their access to affordable contraception and other basic health care if Planned Parenthood went away.
And while Hillary Clinton has pledged to overturn the Hyde amendment — which would mean helping low-income women afford abortion services by letting public programs like Medicaid pay for them — Trump promised in his letter to pro-life groups that he will do the opposite, and make the Hyde amendment permanent.
The one thing Trump didn’t mention in this letter is whether abortion bans should include “exceptions” for cases of rape, incest, or life endangerment. The GOP platform currently calls for a “human life amendment” to the Constitution that would not only ban abortion without exception but also ban certain forms of contraception.
Trump has said before that he would liberalize the GOP’s abortion platform by adding exceptions — but he hasn’t really mentioned that again since picking Pence as his running mate. And Trump has given no indication that he’s willing to rock the mainstream GOP boat on this issue.