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Mastriano Called for Prosecuting Abortion as Murder. He’s Not the Only One.

Criminal penalties for abortion are widely unpopular, but that hasn’t stopped Republicans from pursuing them.

GOP gubernatorial candidate and Pennsylvania Senator Doug Mastriano delivers remarks at a "Save America" rally in Wilkes-Barre, Pennsylvania, on September 3, 2022.

This week, an old interview surfaced of Republican Pennsylvania gubernatorial nominee Doug Mastriano calling for people who have abortions to be prosecuted for murder. The comments came from a 2019 radio interview in which Mastriano was asked whether a “fetal heartbeat” bill he’d sponsored in the state Senate, which would have banned abortion after six weeks, would mean that anyone who obtained abortion after that point in pregnancy should be charged with murder.

“Let’s go back to the basic question there,” Mastriano replied. “Is that a human being? Is that a little boy or girl? If it is, it deserves equal protection under the law.” When the interviewer asked whether that meant he was calling to prosecute abortion as murder, Mastriano removed all doubt, saying, “Yes, I am.”

Mastriano’s candidacy is increasingly seen as somewhere between a long shot and a lost cause, as he has fallen far behind his Democratic opponent, state Attorney General Josh Shapiro, in recent polls. And Shapiro’s campaign eagerly responded to reports of Mastriano’s resurfaced comments, with a spokesperson telling The New York Times this week that Mastriano’s willingness “to prosecute women for murder for making personal health care decisions” meant that he “has the most extreme anti-choice position in the country.”

That may or may not be true, but Mastriano certainly isn’t the only Republican who’s raised the possibility of charging women who have abortions with murder. And not all those Republicans mirror Mastriano’s far-right track record or his lengthy association with extreme elements of Christian nationalism.

In May, just days after news broke about the Supreme Court draft opinion that would ultimately overturn Roe v. Wade, Republican state legislators in Louisiana advanced a bill out of committee that would have classified abortion as homicide, allowing prosecutors to charge anyone who obtained one with murder. The so-called “Abolition of Abortion” act would have “ensure[d] the right to life and equal protection of the laws to all unborn children from the moment of fertilization by protecting them by the same laws protecting other human beings.” In other words, the laws and criminal penalties that apply to homicide would be extended to fetuses as well.

That language, and the title of the bill, reflect the rhetoric of the “abortion abolition” movement, which has introduced bills in multiple states since 2018 calling for classifying abortion as murder and, in some cases, punishing those who obtain abortions with life in prison or even the death penalty. As Cloee Cooper and Tina Vasquez reported at Political Research Associates in 2020, T. Russel Hunter, the founder of an abortion “abolitionist” group called Free the States, said his movement was “call[ing] for the total and immediate criminalization of abortion as murder” rather than attempting “to simply regulate or reduce abortion by treating it as healthcare.”

On its website, Free the States states this plainly: “While many who call themselves pro-life agree with us that abortion is murder, abortion has not been opposed by the pro-life establishment in a manner consistent with its being murder.” And as CNN’s Blake Ellis and Melanie Hicken recently reported, when Louisiana’s bill was debated in the state House in May, Hunter was there, declaring at a rally outside the chambers that the legislation was “a righteous bill that punishes those who choose to murder their children.”

The bill’s sponsor, state Rep. Danny McCormick, echoed this language, saying that even though it’s “a thorny political question,” women who have abortions should face the same criminal liability as those who kill their children after birth. “Abortion is murder,” McCormick said, “and as lawmakers, we have a responsibility to end it.” McCormick’s bill also sought to preemptively void any future federal laws or court rulings that allowed abortion and to provide for the impeachment of any judge who blocked the bill’s enforcement.

Ultimately, that bill failed, thanks largely to the strenuous opposition of fellow Republicans and the state’s leading anti-abortion groups. A representative of Louisiana Right to Life told local news station WAFB that the group’s “long-standing position” was to view abortion-seeking women as victims of “the abortion industry” and to press for penalties for abortion providers instead. A fellow Republican representative, Alan Seabaugh, who had supported the bill at first, subsequently recanted, saying, “We’re on the precipice of the most significant pro-life victory in this country in 50 years…We should not be at each other’s throats over a bill that is blatantly unconstitutional, makes criminals out of women, and, as far as I can tell, was only presented to give a couple of misguided people a platform.”

This fight reflected the standing position of most major anti-abortion groups around the country, which have generally avoided any suggestion that women seeking abortions should face criminal charges. In 2016, when then-candidate Donald Trump suggested that “there has to be some form of punishment” for people who have abortions, national anti-abortion groups quickly moved to correct him, with one declaring him “completely out of touch with the pro-life movement.” This May, more than 70 such groups signed an open letter arguing that efforts to punish women who obtain abortions are “not pro-life.”

If nothing else, that stance certainly reflects prevailing public opinion. According to a mid-May Economist/YouGov poll, fewer than a third of people living in “trigger-law” states supported the idea of charging people who have abortions with murder.

Yet the fall of Roe has also been accompanied by increasingly strident calls for criminal penalties — sometimes severe penalties — for those who have abortions. As CNN noted, “This year, three male lawmakers from Indiana attempted to wipe out existing abortion regulations and change the state’s criminal statutes to apply at the time of fertilization. In Texas, five male lawmakers authored a bill last year that would have made getting an abortion punishable by the death penalty if it had gone into law. A state representative in Arizona introduced legislation that included homicide charges — saying in a Facebook video that anyone who undergoes an abortion deserves to ‘spend some time’ in the Arizona ‘penal system.'”

And sometimes the suggestion of criminalizing abortion has come from supposedly moderate precincts of the GOP. Although this has flown largely under the radar, in the last two weeks Michigan Democrats have highlighted comments from incumbent Republican state Rep. Mark Tisdel that seem to indicate he’s open to declaring abortion a felony.

At a sparsely-attended June candidate forum hosted by the League of Women Voters, Tisdel — who has largely run as a moderate, and whose campaign website omits almost all reference to abortion except for his endorsement by Right to Life Michigan — responded to an audience question about where he stood on a 1931 state law in Michigan that defines abortion as manslaughter. The old law was invalidated decades ago by Roe v. Wade, but faced with Roe’s imminent reversal, Michigan lawmakers were then discussing whether it would become active again. (Earlier this month the law was declared unconstitutional by a state court, though that ruling could be appealed by Michigan Republicans.)

In his answer to the question, Tisdel said he was “not a fan of the 1931 law,” which he thought needed to be “modernized.” But his “biggest problem with the law,” he continued, as that “it refers to abortion as manslaughter.” He continued:

The legal definition — and I might actually slaughter this a little myself — the legal definition of manslaughter is killing a human being without malice aforethought. Now if in fact the fetus is a human being, there’s certainly malice aforethought in that, so I don’t think that manslaughter is the right felony to put on that. And so there are several questions here: At what point does the fetus become a human being? If it is defined legally as a human being, then terminating the life of a human being except in self-defense is murder. And then if you want to go into murder, then you have to decide to what degree.

After a Democratic primary candidate also present at the forum challenged Tisdel over the remarks, he attempted to walk them back. “I did not suggest that murder should be the penalty,” Tisdel said. “What I did say is that the current 1931 law has in it manslaughter and that refers to the death of a human being. And so if it is legally decided that the fetus is a human being, this is not a community discussion, this is a legal discussion. If the court overturns Roe v. Wade, this will be a legal discussion and it will be a call for legislative action.”

In a Sept. 19 press release, Michigan Democratic Chair Lavora Barnes seized on the remarks, saying, “Republicans like Mark Tisdel are actively working to drag the state back 91 years to a dark and dangerous time when abortion was a crime, even in cases of rape and incest.” This week, the Michigan Democratic State Central Committee began running a campaign ad on Facebook that charges, “Extremist Mark Tisdel wants to ban abortions, with NO exception for rape and incest. Tisdel even suggested charging women and doctors with murder for seeking abortion care.”

Tisdel did not immediately respond to a request for comment from Salon.

In the larger national picture, women are already being prosecuted for murder and other felonies, both for abortions and for other pregnancy outcomes, including miscarriages and stillbirths.

“Unfortunately we don’t need to criminalize abortion to charge women,” said Purvaja Kavattur, a research and program associate at National Advocates for Pregnant Women, who said that the success of the “fetal personhood” movement — which holds that embryos and fetuses should have the same rights as “already born” people — has led to a sharp increase in prosecutions related to pregnancy.

In documenting “all the arrests and detentions of pregnant people” from Roe’s passage in 1973 until 2020, NAPW found a clear before-and-after picture. From 1973 until 2005, the group found around 400 arrests; from 2006 to 2020, they found over 1,300, which they believe is an underestimate. The vast majority of those cases, said Kavattur, are not related to abortion, but rather to live births where mothers are arrested or charged with crimes — from child abuse and neglect to murder — for things like using drugs, including prescription medications, but also things like getting into a fight that resulted in possible harm to the fetus, falling down the stairs while pregnant or even having HIV.

“It’s only more recently, with Roe off the books, that politicians are starting to say, ‘OK, we can treat abortion as murder,'” Kavattur said.

One prominent recent example was the initial murder charge brought against a Texas woman for a self-induced abortion — charges that were later dropped, after sparking alarmed nationwide coverage. In response to stories like this, as a Pew Trust report found in early May, some Democratic-leaning states, including California and Colorado, have moved to prevent such prosecutions, following states like Illinois and New York that had already enacted provisions barring fetal homicide laws from being applied to pregnant people. (Nonetheless, as Jia Tolentino noted in the New Yorker this summer, “Even in states such as California, where the law explicitly prohibits charging women with murder after a pregnancy loss, conservative prosecutors are doing so anyway.”)

“I think we’re going to see a massive uptick in murder charges and the criminalization of pregnancy,” said Kavattur. “You’re probably going to see an increase in people who are charged for abortions. But when you make abortion murder, it also opens things up to make all pregnancy outcomes murder.”

And that could lead to a dire chain of consequences. After Tennessee passed a “fetal endangerment law” in 2014, according to a study in the Georgetown Law Review last year, there was a statistically significant effect on fetal and infant health, as people became fearful of accessing prenatal health. In 2015 alone, the study found, Tennessee’s law led to 20 more fetal deaths and 60 more infant deaths.

“Overall, the significance is, we are making pregnancy — something that usually leads to interaction with the health care system — instead something that leads to interaction with the criminal-legal system as well,” said Kavattur. “It creates a hospital-to-prison pipeline, and people are going to be afraid to go to the doctor, because they’ll worry that any sort of pregnancy loss could lead to criminal charges.” If conservative lawmakers “are serious about improving maternal health outcomes,” she concluded, “they really shouldn’t be introducing things that discourage people from seeking prenatal care.”

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