Abortion “death penalty” bill doesn’t mention the death penalty. More than 20 South Carolina lawmakers are proposing the death penalty for women who get abortions, according to a slew of major media reports making the rounds this week. But the truth—while still very bad—is not quite as disturbing as these articles suggest.
The proposal in question is a bill called the Prenatal Equal Protection Act (H. 3549). It was sponsored by Rep. Rob Harris (R–Spartanburg) and attracted 21 co-sponsors as of March 2—although six of these co-sponsors have removed their names from the bill this week.
The gist of the bill is defining personhood to begin at fertilization. From a legal perspective, this is, quite frankly, bonkers on many levels. People cannot even tell they are pregnant until weeks after fertilization. And the majority of fertilized eggs do not go on to become viable pregnancies; somewhere between 10 and 40 percent will die before even being implanted in a woman’s uterus, and upwards of 50 percent may eventually be miscarried. Legally defining personhood as beginning at conception creates all sorts of thorny issues, from the serious (should the state start investigating all miscarriages as potential homicides?) to the odd (can a pregnant woman legally drive in a carpool lane?).
But the idea that personhood begins at conception is not a totally fringe idea: fetal personhood laws have been considered in a number of states and passed in five (Alabama, Arizona, Georgia, Kansas and Missouri). And implicit in this concept is the idea that all laws applying to me and you—including laws against assault and murder—would equally apply to all “unborn persons.”
That’s what South Carolina’s proposed Prenatal Equal Protection Act would make explicit. It would amend the sections of the state code related to murder and assault to say that the term person “includes an unborn child at every stage of development from fertilization until birth.” This change would mean that women who get abortions could be charged with homicide, and women who injure a fetus in some way could be charged with assault.
This is a terrible idea—perhaps especially the second part, which would not just affect people who get abortions but anyone who acted in a way that could possibly injure a fetus. It’s the type of laws that could lead to increased surveillance, restrictions on, and criminalization of pregnant women across the board. And for women who did attempt an abortion in South Carolina, it could mean prosecution as a murderer.
The bill contains provisions stating that “where the victim is an unborn child and the defendant is the child’s mother, it is a defense to prosecution under this article that the mother engaged in the proscribed conduct because she was compelled to do so by the threat of imminent death or great bodily injury,” and that “medical care or treatment provided with the requisite consent by a licensed physician to avert the death of a pregnant woman that results in the accidental or unintentional injury or death of her unborn child when all reasonable alternatives to save the life of the unborn child were attempted or none were available does not constitute a violation of this article.” Nonetheless, the severe penalties attached to the death of a fertilized egg, embryo, or fetus could make it much harder for pregnant women whose life or health is at risk to get the care they need. And it may make medical professionals slower to take action in situations when a pregnant woman’s health is compromised if it puts the fetus at risk.
All of this is bad enough without exaggerating the stakes or the motivations of lawmakers, which seems to be exactly what many in the media have been doing this week by implying that killing women who abort is the bill’s intent.
Nowhere in its text does the Prenatal Equal Protection mention the death penalty. And as far as I can tell, none of the sponsoring lawmakers have opined that women who get abortions should be put to death. In fact, Rep. Harris explicitly said that killing women who get abortions was not the bill’s intent.
Now, this may be cold comfort, considering it is possible that the law could lead to the death penalty for women who get abortions. The death penalty is one possible punishment for people who plead guilty to or are convicted of murder, and that’s certainly worth mentioning in coverage of the Prenatal Equal Protection Act. But there’s nothing in the code saying that people convicted of murder must or necessarily should receive the death penalty. And—call me naive, but—I find it unlikely that the state would pursue it in abortion cases, or that courts would uphold this penalty if it tried.
Even without involving the death penalty, people found guilty of murdering fertilized eggs or fetuses could still face extremely severe consequences under the Prenatal Equal Protection Act. The mandatory minimum term of imprisonment for murder in South Carolina is 30 years.
South Carolina Republicans want at least 30 years imprisonment for women who get abortions is certainly a terrifying proposition in and of itself.
People are right to be sounding the alarm—loudly—about this bill and the lawmakers who support it. But exaggerating their motives and the bill’s likely outcomes only gives South Carolina Republicans and other abortion opponents room to suggest that they’re being misrepresented, that the press is being sensationalistic, etc.…and room for casual observers to conclude that the bill really isn’t that bad and they shouldn’t trust anything the media says about it. Ultimately, it could detract from serious discussion about the bill’s implications and opposition to it.
FREE MINDS
Low-flying helicopter during 2020 protest “constituted assault, battery, and intentional infliction of emotional distress under D.C. law,” alleges lawsuit. “The American Civil Liberties Union has filed a lawsuit against the D.C. National Guard for its use of military-grade helicopters on local protesters during 2020’s demonstrations against police brutality,” reports DCist. “The D.C. ACLU filed the suit on behalf of 25-year-old Dzhuliya Dashtamirova, a protester who said she incurred injuries from the Guard’s low-flying tactics on June 1, 2020, which blew dirt, glass, and debris into the air.” (Here’s my dispatch from that protest, where I was nearly hit by a big plank of wood the low-flying helicopter sent flying.)
FREE MARKETS
Meta says Facebook and Instagram will stop allowing people to post news content in Canada if the Online News Act passes. The Online News Act would require social media companies and search engines to pay publishers for links to news. Meta spokesperson Lisa Laventure “says paying for these posts is neither sustainable nor workable for Meta,” reports The Canadian Press:
Tech giants like Meta and Google have fought against the proposed law known as Bill C-18, which would require digital giants such as Google to negotiate deals that would compensate Canadian media companies for linking to or repurposing their content online.
Large Canadian media companies and the federal Liberal government argue the bill would level the playing field for news outlets that compete with tech giants for advertising dollars.
Facebook blocked access to news in Australia after a similar law was discussed in 2021, but quickly backtracked after the government made changes to an arbitration mechanism in the bill.
U.S. lawmakers have not outright proposed a “link tax” like this, but they do want to make it easier for publishers to demand such compensation. But if Meta’s responses in Canada and Australia (and common sense) are any indication, tech companies would rather scrap news links than pay for them—depriving consumers of an easily accessible source of information and news outlets of the web traffic that search engines and social media drive.
QUICK HITS
• “A man who has served more than 34 years of a 400-year prison sentence has been released after the state of Florida reinvestigated the case and determined he did not commit armed robbery,” reports ABC News.
• How Washington decided to bail out Silicon Valley Bank.
• A new artificial intelligence system, GPT-4, is getting a lot of buzz.
• Sally Satel on “the flawed case for executing the mentally ill.”
• Bad booze bills in Utah.
• Meta says it will lay off 10,000 more employees.
• The Department of Justice is now suing Rite Aid over opioid prescriptions. (For more context, see “The Fight To Criminalize Opioid Prescribing.”)
• A Texas man has filed a wrongful death lawsuit against friends who helped his wife obtain an abortion.
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