When Donald Trump said this week that, if abortion is recriminalized, women who have abortions should face “some form of punishment,” the anti-choice movement went into damage control mode and Trump quickly attempted to walk back his comments.
But not every abortion rights opponent got the memo about not touching the third rail of anti-abortion politics. Televangelist Pat Robertson, for instance, seemed genuinely perplexed by the issue, saying that while it “does seem a bit draconian” to punish women for abortion, “if somebody says abortion is murder, then what do you do to somebody who commits murder?”
Jay Sekulow, the chief counsel of the American Center for Law and Justice, the Religious Right legal group founded by Robertson, similarly seemed to have not gotten the memo, explaining on his radio program yesterday that if Roe v. Wade were to be overturned, of course states would be free to impose punishments on women who get abortions, especially if they view embryos and fetuses as “persons” under the law. Sekulow also hinted that he might agree with such a policy for women who use abortion for “birth control.”
While the current federal ban on “partial-birth” abortion protects women from prosecution, Sekulow explained, if Roe were overturned, states would be free to impose whatever abortion penalties they wanted.
“That’s a different question from whether you legally could have statutes, if Roe v. Wade was overturned, that criminalized the abortion activity,” he said, “including anybody that voluntarily — not coercion, not life of the mother, not rape or incest, because those would all be defenses — but could a state say if a woman voluntarily had a partial-birth abortion that that act could be criminalized, could a state say that? Sure, a state could say that. And if you believe that the child’s a person, well, I’m not so sure that that’s contradictory.”
Sekulow added that “politically we always focus on the abortion provider, not the woman” but “that’s a different question than legally” so, legally, “a state could say that anybody involved in the process is committing a crime, if you believe it’s a person.”
Sekulow’s son, Jordan, a cohost of the show, noted: “We’re talking hypotheticals here, I think it’s a long road until we get to that point where those kind of abortion laws would be potentially in place.”
“There’s a political question whether they should be,” Sekulow responded, “I think that’s a legitimate point. But the legal issue is not improbable.”
Later in the program, the Sekulows and their cohost, ACLJ government affairs director Nathanael Bennett, took a call from a listener who said that Trump’s comments were encouraging to her because while she doubted that the candidate was truly against abortion rights, the comments show “at least he’s thinking pro-life and would be willing to take that stance.”
Sekulow responded by repeating his point that Trump was not “legally incorrect” in saying there could be punishments for women if abortion becomes illegal.
“If we believe the child is a person,” he said, “in other words, the personhood of the child, that should be protected under the Constitution, that someone that knowingly, willfully and voluntarily takes the life of that person could be — not should be, could be — held culpable under criminal laws of the various states, that would not be illegal or extraconstitutional.”
“Now, I’m not saying that’s the right policy,” he added, “because a lot of us view that women are forced into coerced situations, but the reality is — and let me just drop a hypothetical, a woman’s having her third — and this happens — third partial-birth abortion, partial-birth abortion’s illegal and the state of California says, ‘You know what, anybody that participates in a partial-birth abortion, unless it’s the life of the mother, rape or incest, is a culpable criminal.’ That’s not illegal. A state could do that. I’m not saying that’s the right political decision, I’m not even saying that’s the right moral decision. I’m saying legally, was what Trump was saying legally incorrect? No, it wasn’t legally incorrect. Politically he had to take it back, but legally it was not incorrect.”
Jordan Sekulow and Bennett said that while they had seen some “positive” responses to Trump’s comments from their conservative audience members, including one who wrote in to say she had a “new respect for Donald Trump,” the comments would become a political liability for him in the general election.
Bennett said Trump’s comments had given him “some heartburn” because “we want to win hearts and minds on this.”
“You want to know why it gives you heartburn?” Sekulow demanded. “You want to know why it gives everybody heartburn? I’m going to say it and this is going to be controversial. You know why it really gives everybody heartburn? Here’s the real reason, and some of you are going to really disagree with this: because a lot of people really don’t believe the unborn child is a person.”
He then went on to suggest that he does believe that “the unborn child is a person” and thus might be open to punishments for women who use abortion as “birth control.”
“Because if you really believe,” he said, “that the unborn child’s a person — and as I’ve looked at my grandchildren’s ultrasounds — you would say, if somebody voluntarily did this for the purposes of birth control —which is generally what it is, is an inconvenience, not medically necessary, not life of the mother, not incest or rape — you think to yourself, if it’s really a person, what’s so, what’s so — but we aren’t there yet politically and we’re not there maybe even legally or morally, and that may be shame on us in one sense.
“I’m not saying it would be the right policy, by the way, to do this, because I believe politics are the art of the possible and I agree, Than, we want to win hearts and minds. But the problem is, if you really logically look at this, the fact of the matter is, if it’s a person for goodness sake, and I believe it is, the rules would be different. For any other person that somebody killed, they’d be held culpable, either as the primary person or the accessory to the crime. So this is not, it’s not craziness what’s being said here, and I think that’s why on social media you’re seeing kind of a mixed reaction.”
Just in case the audience didn’t get the point, the Sekulows returned to the point later in the program, as Jay insisted that “the kerfuffle that Donald Trump’s in” is because “he’s not familiar enough with the language or the nuance” of the anti-abortion movement, not because he’s “legally wrong.”
Jordan added that the anti-choice movement’s opposition to legal punishment for women is indeed a “policy position” and not necessarily the legal result of banning abortion. “On the legal side of it, though, you see why the reason would be, if you make something illegal then you could punish, and so ultimately that would be up to the policymakers to decide,” he said.