After the public learned last week that the Supreme Court was potentially poised to overturn Roe v. Wade, Republicans’ Senate campaign arm was quick to send out word on where the party stands — or perhaps would be wise to stand — when it comes to criminalizing abortion.
“Republicans DO NOT want to throw doctors and women in jail,” said a messaging memo from the National Republican Senatorial Committee, which was obtained by Axios. “Mothers should be held harmless under the law.”
Easier said than done, it would seem, given how many GOP bills or laws threaten doctors with jail. But polling reinforces why Republicans are leery about being led into such territory by their base.
Despite the committee’s claim, many red states have laws — including so-called trigger laws that will go into effect if and when Roe is overturned — that make abortion a crime potentially punishable by years in jail. The vast majority of these laws aim punishments only and expressly at the provider, carrying sentences that range between two to 15 or even 20 years. But some of these laws leave that unclear. And some states have pursued laws that punish women seeking abortions as well — punishments that could be difficult for the GOP to avoid, given its rhetoric on the topic (which we’ll come back to).
The most pronounced example is in Louisiana, where a bill recently advanced that would make abortion a homicide with punishments for both the provider and the woman. Even the state’s most prominent antiabortion rights group has come out against it because of its punishments for women who seek abortions.
South Carolina doesn’t have a trigger law, per se, but its existing law makes women who seek illegal abortions guilty of a misdemeanor, with punishments as high as two years in prison.
Polls show that many Americans see this as a red line — but not in a way that will mean the issue is off the table for the Republican base.
A new poll released Wednesday by Monmouth University showed 60 percent of Americans say it would bother them “a lot” if states treat illegal abortions as murder and punish both the provider and the woman accordingly, as Louisiana’s bill would do. Fully 77 percent said they would be bothered at least “a little” by that prospect.
Penalties short of murder charges also poll poorly. In 2019, a Marist College poll showed Americans opposed making abortion a crime punishable by jail time or fines for providers, 71 percent to 24 percent. A Kaiser Family Foundation poll showed a slightly less lopsided but still lopsided split: 65-34.
When it came to potential criminal charges for women, opposition in the latter poll rose to 74-25.
Republicans were a very different story: The Monmouth poll found that a majority — 58 percent — of them supported charging providers with crimes and either going to jail or paying fines, and about half — 49 percent — supported charging patients who sought them.
When you separate jail time from fines or other punishments, support for the more extreme punishments falls, but still remains. A Pew Research Center poll earlier this year found 21 percent of Republicans and Republican-leaning voters supported putting women who obtain abortions in jail, and 40 percent supported putting doctors in jail.
That suggests the GOP base might not be clamoring for the kind of penalties for women included in the Louisiana bill, but that there is a substantial portion of the part that does indeed “want to throw doctors … in jail,” as the GOP’s messaging memo put it.
And it could be a topic that’s difficult to avoid. Despite the criticism of the Louisiana bill even on the right, it fits with the party’s long-standing talking point that abortion is ending a life. If one truly believes that, how would it not be considered some form of murder? And how would you not punish someone who takes part, whether a provider or a patient?
Appetite for going that far might have been lower in a world in which all of this was in the abstract, and when abortion rights were enshrined in the Constitution per the Supreme Court. But now we seem to be on the precipice of a situation in which abortion will be outlawed in many states — as many as half, according to some estimates — and states will suddenly be confronted with what enforcement mechanisms to employ.
Most of those enforcement mechanisms (in the form of about a dozen trigger laws) already include potential jail time — potentially many years’ worth, and sometimes mandatory — for doctors convicted of performing illegal abortions. In fact, almost all of them make performing an abortion a felony and contain the according penalties.
Much like the party’s posture toward rape and incest exceptions, it’ll be a major test of how far it wants to go pro-Roe — or will be drawn into going.
