"This way of thinking reflects ancient notions about women’s place…under the Constitution–ideas that have long since been discredited."

Kathryn Jean Lopez essays the “my unprincipled positions on abortion are defensible because women are passive victims who cannot be held morally responsible for their actions” routine. I’ve recently explained why no “pro-life” position that punishes doctors but not women can be defensible, and see Jill Filipovic as well. But let’s look at some of her other contributions. First, we get the “overturning Roe is no big deal” evasion:

In reality, the Supreme Court, if it overturned the landmark decision, would put the abortion decision in the hands of the people, where it should have been all along. Federalism will reign, as each state will decide for itself what to do.

Sadly, no, and it’s especially absurd to claim this given that the Supreme Court just upheld a federal ban on an abortion procedure. Moreover, “leaving it to the states” makes no sense given Lopez’s moral premises, not only because it’s ridiculous to consider a fetus human life in Mississippi but to have this status disappear entirely when the future mother gets on a plane to New York, but the availability in abortion in some state would mean that you’re just banning abortion for women who can’t afford to travel, which makes no sense at all.

History suggests that when tough anti-abortion laws exist, desperate women aren’t rushed to the slammer. If you don’t trust whack-job pro-lifers like me, look at the historical record. Abortion was illegal in the United States prior to the Supreme Court’s 1973 ruling, and women weren’t being rushed to jail in droves for seeking abortions. Women weren’t prosecuted because the law generally wasn’t after them to begin with.

It’s nice to see an anti-choicer actually discuss abortion on the ground, and the historical claim here is correct — women were often not even formally covered under abortion laws, many of which were written in the late 19th century and embodied those conceptions of gender relations, and abortion laws were sporadically and arbitrarily enforced. (What she doesn’t mention is that it was also difficult to get convictions of doctors unless a the abortion was botched.) What’s bizarre is that she seems to think that the egregiously arbitrary and inequitable enforcement of abortion laws is a point in their favor, when of course it fatally undermines both the normative and empirical case for abortion criminalization. What Lopez is practically advocating, combining her two arguments, is our old friend abortion-on-demand for affluent urban women and more dangerous black market abortions or self-abortions for poor women. This is a ridiculous position no matter what your underlying moral position on abortion, and one completely inconsistent with basic democratic principles.

But wait — why shouldn’t women be punished? Well, you knew this was coming — Lopez wants to see women in the same way the law saw women when the Texas abortion law struck down in Roe was enacted:

What people who ask this question fail to understand is what most abortion opponents actually want — to stop the additional victimization of women. They already are victimized by abortion. Women are often pressured into it by desperate circumstances and suffer in silence for years after their decision.

Women shouldn’t be punished, apparently, because they should be treated like infants. As soon as Lopez applies the odd new conservative principle that people who are in “desperate circumstances” cannot be criminally held responsible for their actions across the board — which I think means that we can shut down about 90% of our jails and repeal most of our criminal laws — I will take her arguments (which are the arguments of the mainstream American forced pregnancy for poor women lobby) seriously. Until then, not so much.

[Also at Feministe.]