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A Project of The Annenberg Public Policy Center

Abortion Attack Goes Too Far in Montana

A TV ad in Montana says Rep. Steve Daines — who opposes abortion rights — “proposed making women criminals for having an abortion.” But the bill that the ad cites as evidence expressly bars “the prosecution of any woman for the death of her unborn child.”

The ad was released May 20 by Montana Sen. John Walsh’s campaign. Walsh, a Democrat, was appointed to the Senate in February and is already bracing for a strong challenge in the fall from Daines, a freshman House Republican who is considered the frontrunner in the June Republican primary.

The two men differ greatly on the issue of abortion: Walsh supports abortion rights, and Daines opposes abortion even in cases of rape and incest. This ad, titled “Melissa,” features a woman who says she was raped as a 14-year-old girl and feels insulted by Daines. Melissa says, “Daines sponsored a bill to make abortion illegal for victims of sexual assault. He’s even proposed making women criminals for having an abortion.”

It’s true that Daines “opposes abortion in all instances except life of mother,” as his spokesman Brock Lowrance told us in an email. But let’s look at the claim that Daines proposed criminally prosecuting women for having an abortion.

The ad cites two sources for this claim: Daines’ support for H.R. 1091, the Life at Conception Act, and an Aug. 23, 2012, newspaper article in the Independent Record.

In April 2013, Daines signed on as a co-sponsor of the Life at Conception Act, which says “each born and preborn human person” is entitled to “equal protection” under the 14th Amendment of the U.S. Constitution. The bill is the latest attempt by abortion opponents to declare the “preborn” U.S. citizens entitled to legal and constitutional rights.

The bill is short – less than a page long – and doesn’t mention penalties for violating the law. But it specifically prohibits the prosecution of women who have an abortion.

Life at Conception Act, March 12, 2013: However, nothing in this Act shall be construed to authorize the prosecution of any woman for the death of her unborn child.

That language directly contradicts the ad’s claim that Daines proposed making women criminals for having an abortion. When we asked about that, Walsh campaign spokeswoman Lauren Passalacqua responded by saying, “even with that one-line provision [the bill] still makes abortion illegal.” That’s true, but that’s not in dispute. Daines does support making abortion illegal, but he doesn’t support prosecuting women for having an abortion. Lowrance, Daines’ spokesman, called the ad’s claim “completely made up.”

“It would be absurd to say Steve would make women criminals,” Lowrance said.

The Independent Record newspaper article cited by the Walsh campaign also doesn’t support the ad’s claim. The article was about the reaction to Republican Todd Akins’ controversial comments on “legitimate rape” during the 2012 Senate election in Missouri. Daines said he found Akins’ remarks “extremely offensive,” but his Democratic opponent in the 2012 House race, Kim Gillian, claimed Daines’ criticism of Akins wasn’t strong enough. At the end of the article, the paper writes: “Daines noted that his position is the same as the national Republican Party’s platform: That abortion should be legal only to save the life of the mother.”

Passalacqua, Walsh’s spokeswoman, cites Daines’ support for the Republican platform as evidence that he “proposed making women criminals for having an abortion.” She argues, “The Republican Platform does not include any provision to protect women who receive abortions from penalties. Abortion, once illegal would be a criminal act.”

It’s true that in past years the GOP platform contained language that specifically opposed any “punitive action” against women for obtaining an abortion. In 2004, the last time the platform contained such language, the platform said: “We oppose abortion, but our pro-life agenda does not include punitive action against women who have an abortion.”

But absence of the language isn’t evidence that Daines “proposed making women criminals for having an abortion” — especially since his campaign says he does not support making women criminals for having an abortion and the bills that he has supported in his short time in Congress have specifically provided immunity for women who have an abortion. In addition to the Life at Conception Act, Daines also co-sponsored the Pain-Capable Unborn Child Protection Act, which would have banned abortion when the fetus is 20 weeks or older. That bill contained a “bar to prosecution” provision:

Pain-Capable Unborn Child Protection Act, April 26, 2013: BAR TO PROSECUTION.—A woman upon whom an abortion in violation of subsection (a) is performed or attempted may not be prosecuted under, or for a conspiracy to violate, subsection (a), or for an offense under 13 section 2, 3, or 4 of this title based on such a violation.

In fact, the history of abortion in the United States shows that abortion providers are largely the ones targeted for prosecution, not the women who seek or have illegal abortions.

In a paper on the history of abortion before Roe V. Wade, the Guttmacher Institute says abortion was widely illegal in the United States from the mid-1800s to the early 1960s and violating state abortion laws carried “serious legal consequences.” During this time, the Guttmacher paper says, “[w]omen were rarely convicted for having an abortion; instead, the threat of prosecution often was used to encourage them to testify against the provider.”

The first successful attempt to criminalize abortion since Roe v. Wade was the federal Partial-Birth Abortion Ban Act in 2003, and that law gave immunity to women seeking such abortions. It contains criminal penalties for doctors who violate the law of up to two years in prison, but it contains this exception for women:

Partial-Birth Abortion Ban Act, Nov. 5, 2003: A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section.

There is no doubt that Daines opposes abortion, and he has co-sponsored legislation that would place further restrictions on abortion and limits on women’s access to abortion. But rather than stick to those facts, the ad goes too far. He has not “proposed making women criminals for having an abortion.”

— Eugene Kiely