THE BLOG
01/07/2015 01:51 pm ET Updated Mar 09, 2015

Are Chickens Animals? Are Women Responsible Human Beings? Only Your State Legislators Can Decide

There is no law which says that state legislators have to deal with reality.

In 1983 in Louisiana, the legislature amended an animal cruelty statute so that it could not be used to stop the popular Louisiana sport of cockfighting. To remove that terrible possibility, the legislators wrote a proviso which was added to the bill. It said, "For purposes of this Section, fowl shall not be defined as animals." If the legislature of Louisiana can decide that chickens are not animals, then other state legislatures can decide that real women with the moral agency to choose abortion simply do not exist. And they are deciding it all the time

Since the Republican sweep of 2010, 30 or more state legislatures have produced a flood, an avalanche (choose your metaphor) of anti-abortion legislation. The variety is enormous but behind all of them is the conviction that when a woman has an abortion, she is not operating as a moral agent: She is actually a victim. Insisting that women seeking and obtaining abortions are "victims" has a long history. Nineteenth century state legislators shared the same attitude as the current crop of anti-abortion legislators. Whether the legislators and the courts realized that putting women in jail was not going to be popular, or because they just didn't have the stomach for it, the majority of states decided to excuse women from punishment by claiming that they were incapable of making an adult decision to get an abortion. In practice women who obtained abortions were essentially immune from prosecution. There is no case in which an American woman was ever put on trial, let alone convicted, under an abortion law.

Following in this tradition any proposed modern legislation criminalizing abortion always has a provision that excludes punishment for the woman. Some states have passed conditional abortion bans designed to go into effect the moment the Roe decision is overturned. These so-called trigger laws "apply only to parties other than the (sic) mother."

In 2005, the state of South Dakota, known for its many anti-abortion statutes, appointed a South Dakota Task Force on Abortion to gather background material for a new abortion law. The authors of the report believe that a woman is primarily maternal. They are so convinced of their understanding of a woman's nature that they cannot believe that a woman could -- by herself -- decide to have an abortion. Noting that an abortion clinic will have a woman sign a waiver stating that she wants to have an abortion, they comment that such a waiver is an unreasonable expectation of the woman because, "It is so far outside the normal conduct of a mother to implicate herself in the killing of her own child."

How then did she come to sign the waiver? Here the writers insist there can be only two reasons:

Either the abortion provider must deceive the mother into thinking the unborn child does not yet exist, and thereby induce her consent without being informed, or the abortion provider must encourage her to defy her very nature as a mother to protect her child.

In other words, apparently women do not have the independence of mind and spirit to make this decision. Someone has tampered with them. That this view is extremely insulting to women does not seem to occur to the authors of the report. That many, many women can simply decide that they would not be good mothers, or that their interests lie elsewhere, or that they want to do something else with their life, is something the writers simply refuse to believe. They are not alone. Hundreds of state legislators seem to agree.

There is one ancient religious tradition which does recognize both the realities of women's lives and their moral agency -- traditional Judaism. The rabbinical tradition proclaimed that men were required to build up the House of Israel by having children, but women were not so commanded. Rabbi Sofer's phrase was "No woman is required to build the world by destroying herself." It was a simple recognition of the fact that having a baby always entails a risk. These rabbis, all men, believed that they had no right to command a woman to go through a pregnancy. They understood of course that most women would probably choose to have children, but they would not command it. She should have the right to make that decision. Unfortunately, many state legislatures do not seem to have any trouble commanding it.