Republished with permission from Lucian K. Truscott IV
Help me out here: I’ve been trying to come up with any laws, other than those against abortion, that apply to only one gender. If you commit fraud, it doesn’t matter what sex you are. The law doesn’t care whether you are a man or a woman if you engage in a scheme of racketeering. In fact, there are a bunch of men and women under indictment for racketeering in Georgia right now. Four of them have pleaded guilty: two men and two women.
If you commit murder, the law doesn’t care if you are male or female. It applies equally to both genders. The same is true of assault and battery, or theft, or child abuse, or sexual assault. Men and women can be charged with each of those crimes, and if found guilty, be sentenced to prison. In fact, there are prisons and jails for offenders of both sexes. If you are guilty of a felony crime serious enough, the law prescribes the same penalties.
But not abortion. If a state passes a law that makes abortion illegal, only women can suffer its consequences, because only women can be pregnant and get an abortion. Laws against performing an abortion apply to both male and female doctors, but the act at the center of those laws, being pregnant and receiving an abortion, applies only to women.
According to a PBS story published on June 22, one year after the Supreme Court overturned its Roe v. Wade decision giving women a constitutional right to abortion, “Twenty-five million women of childbearing age now live in states where the law makes abortions harder to get than they were before the ruling.” You will note that sentence does not say 25 million people live in those states. It says, “25 million women of childbearing age,” because, of course, only women can bear a child, so the law applies only to them.
Some states that have restricted abortion or made it illegal altogether have already prosecuted women under the laws they passed since the Supreme Court’s Dobbs decision. In Nebraska, a woman charged with having an abortion as a 17-year-old and disposing of the fetus was sentenced to 90 days in jail and two years of probation. Her mother was found guilty of giving her abortion pills and helping dispose of the fetus, and was sentenced to two years in prison.
A woman in South Carolina was arrested in February of this year for attempting to induce an abortion using pills in 2021. A warrant for her arrest was issued in 2022 after the Supreme Court overturned Roe v Wade. South Carolina is one of three states, along with Nevada and Oklahoma, that specifically make it illegal to self-administer pills that cause an abortion. In Alabama, twenty women who had miscarriages or had a stillbirth have been prosecuted since 2006 for using drugs during their pregnancies. One of them, Brooke Shoemaker, who was convicted in 2020 after having a stillbirth while using drugs, is serving an 18-year sentence in prison. In Oklahoma, a woman was convicted of miscarrying after using methamphetamine. If the women had not been pregnant while they were using drugs, all they would have charged with was simple possession or use of drugs.
You will notice that no men were charged or convicted in the cases where women lost a baby because of drug use, because only women can get pregnant and have a baby. The men who contributed sperm to make them pregnant and could have been partners in the drug use that followed, were not charged, because men don’t carry babies.
All the laws restricting abortion or making it outright illegal that have passed since the Supreme Court returned the issue of abortion to the states, as it is said, apply to women and to women only. That is part of the reason why the constitutional amendment permitting abortion passed in Ohio, because women, who suffered under the state’s abortion restrictions, turned out in droves to vote. The same was true in Kansas when they passed a similar amendment to that state’s constitution, and in Virginia this week, when women turned out in large numbers to elect a state legislature that would not go along with Governor Youngkin’s pledge to pass a 15-week abortion ban.
You will note that Governor Youngkin is a man, as is the governor of Oklahoma, but the governor of Alabama, which has the most restrictive abortion law in the nation, is a woman. Plenty of women serving in state legislatures have voted to restrict abortion. But the laws they voted for, alongside men, apply only to women.
In my search for any law applying to men only that would be analogous to the abortion laws applying to women only, I couldn’t find one. But I did come up with a personal situation from my own life that presents an analogy that makes the point of how unfair and absurd abortion laws are.
Some years ago, I was diagnosed with prostate cancer. The doctor who diagnosed the cancer and found evidence of it in my prostate with a tissue sample, was my urologist. It took several months for the diagnosis, and then more months while I was treated with radiation for the cancer to go into remission.
Only men have a prostate, thus only men can contract prostate cancer, making prostate cancer a male-only condition. Consider this: what if there had been a law that said I had 15 weeks to get diagnosed and treated for my prostate cancer, and that was it. After 15 weeks, I was stuck with it. I would not be allowed to receive treatment for the cancer, and I might have died.
It’s not a perfect analogy, but it’s close. In the case of women in states that ban abortions after 15 weeks, or six weeks, or whatever the limitation is, women cannot receive the medical treatment called an abortion after that time. The laws in those states just cut off access to treatment after that date. Already, there have been multiple stories about women who have been diagnosed with ectopic pregnancies and other problems with their pregnancies. In some cases, abortion is the proper medical treatment for them. But because of poorly written abortion restrictions with confusing language about what “the health of the mother” entails, doctors have been reluctant to perform abortions because of the possibility of violating the state abortion laws. Some women have lost their lives because of badly worded abortion laws and doctors who have been afraid of violating them.
Youngkin of Virginia thought he had come up with a solution for Republicans on abortion. Ban the procedure after 15 weeks, allow exceptions for rape, incest, and the health of the mother, and be done with it. If Republicans had won the Virginia legislative races on Tuesday, and Youngkin had set off on his quest to change Virginia’s law to a 15 week ban, it was said that his “solution” to the abortion question might spread across the country in Republican-controlled states, and Republicans could take abortion off the table as an issue that was causing them to lose elections.
There was a problem with that scenario: abortion laws apply only to women, and women know it’s not fair to have laws that apply to one gender and not to the other.
We have a constitution that does not allow laws that apply to the Black race, but not to the White race. If I were the ACLU or the Guttmacher Institute or the people who run Reproductive Freedom for All (formerly NARAL Pro-Choice America), I would start preparing a case that challenges laws regarding abortion as unconstitutional because they apply to women and not to men.
Fair is fair, right?
Lucian K. Truscott IV
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.
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