Republicans Want a New Weapon in the War on Abortion: Murder Charges

The U.S. anti-abortion movement is built on the belief that getting an abortion is tantamount to killing a child. Now, some abortion opponents want to turn that idea into law.

Legislators in at least three states—Arizona, North Dakota and Mississippi—introduced bills for the 2021 legislative session that would allow prosecutors to charge abortion providers with murder, as part of a massive wave of anti-abortion legislation that’s flooding statehouses across the country. So far this session, at least 143 abortions restrictions have been introduced in 25 states, and there's likely more to come.

“If you want to spout, ‘My body, my body choice,’ you need to spend some time in our Arizona penal system,” Arizona State Rep. Walt Blackman, who introduced a bill this year that would punish both abortion providers and patients, said in August. “If you are going to kill and end the life of another human being, that is murder.”

And regardless of whether they become law, just introducing a bill that labels an abortion provider a murderer has an impact, according to Elizabeth Nash, who tracks abortion legislation for the Guttmacher Institute. 

“They essentially set a goal post that abortion would be illegal and a provider could be charged with murder—and then all other restrictions look so much more moderate,” Nash said. 

Between GOP control of several state governments and a conservative Supreme Court, the U.S. is primed to kick off a kind of abortion arms race this year. States are already trying to pass laws that were once believed too politically poisonous to ever succeed.

Prosecuting people for “homicide by abortion,” as Blackman’s bill proposes in Arizona, is an unpopular suggestion even among opponents of abortion. But that’s not the only extreme idea in there. 

Under his bill, the legal definition of “person” would include “an unborn child in the womb at any stage of development.” There are no exceptions for rape or incest. 

In Mississippi and North Dakota, anti-abortion legislators are not only hoping to charge abortion providers with murder; they also want to expand the circle of people who could face criminal prosecution in connection to an abortion. Under the Mississippi bill in the current legislative session, anyone who even provides information about how to get an abortion could up to 10 years in prison and a $25,000 fine. In North Dakota, anyone who “intentionally or knowingly aids, abets, facilitates, solicits, or incites another person to commit an abortion” may end up spending five years in prison and facing a $10,000 fine. 

It’s unclear whether any of these bills will pass. But if they do, they’ll almost certainly be challenged in court, where they’ll likely be stopped from taking effect as the case continues.

They are also doing the work of mainstreaming ideas that were long considered fringe, even within the anti-abortion movement. And it wouldn’t be the first time that abortion legislation that was once thought to be politically poisonous ended up becoming law. 

In 2011, when anti-abortion activists first championed the idea of banning abortion as early as six weeks into pregnancy, many in the anti-abortion movement dismissed it as a rash ploy that would turn off people who would otherwise support anti-abortion legislation. But by 2019, in the wake of Brett Kavanaugh’s confirmation to the Supreme Court, five states passed six-week bans, even though many people don’t even know they’re pregnant at that stage. 

One state went even further in 2019: Alabama banned all abortions, except in the case of pregnancies that posed a “serious health risk” to the pregnant person. Doctors who performed abortions could go to jail for up to 99 years. 

The six-week ban passed in Georgia that year also legally redefined “an unborn child” as a person, complete with all the “full legal protection” conferred by such a status. Prosecutors could use that statute to push for murder charges against abortion providers—just as they could for anyone who murdered an adult human.

These laws were all halted by legal challenges, but that was no surprise to their backers. In fact, teeing up a lawsuit is part of the point of passing abortion restrictions that fly in the face of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. They can give the Supreme Court a chance to reconsider Roe—or knock it down entirely.

So far this year, legislators in at least three states have introduced six-week bans, according to Nash. Lawmakers in eight states have proposed near-total bans on abortion.

When Democrats captured the White House and Congress in 2020, they opened up the opportunity to restore federal policies that could expand abortion access. But most abortion law is crafted at the state level, and Democrats’ efforts to flip statehouses were far less successful: Only two state legislative chambers, both in New Hampshire, switched party control—in favor of the GOP. Twenty-one states are now firmly under Republican control, compared to 15 run by Democrats and 13 that are divided between the two parties, according to the National Conference of State Legislatures. (Nebraska has a nonpartisan, unicameral legislature.)

The Supreme Court is also firmly under the sway of a conservative majority, thanks to Justice Amy Coney Barrett’s October confirmation to the nation’s highest court. Opponents of the procedure believe that they finally have a court that’s willing to overturn Roe.