Bopp gets behind 'model abortion law'

Jul. 9—The National Right to Life Committee and general counsel Jim Bopp have proposed a post-Roe "model abortion law" for states to consider enacting.

On June 24, the U.S. Supreme Court overturned Roe v. Wade, ending constitutional protection for abortion.

The model law would prohibit abortion except when necessary to prevent the death of the mother. States could choose to include exceptions for pregnancy resulting from rape or incest, Bopp said.

It would prohibit aiding or abetting illegal abortions; the sale or distribution of medication causing abortion if a person knows, or has reason to believe, it will be used for an abortion; and taking a pregnant minor across state lines to obtain an abortion without the consent of her parents.

The model law calls for a "robust enforcement mechanism" that not only provides criminal penalties, but also civil remedies and licensing revocation for physicians who perform illegal abortions.

On the civil side, the model law would allow state or local officials and affected persons to bring a civil action against any person or entity that violates any provision of the model law, permitting a court to stop the offender from future violations; permitting compensatory damages if the plaintiff has suffered actual injury or harm from the defendant's conduct; punitive damages, payable to the not-for-profit organization of the plaintiff's choice, that provides services to pregnant women; and costs and reasonable attorney's fees.

It would give a state's attorney general the authority to prosecute criminal violations of the abortion law either with, or instead of, the county prosecutor, if the prosecutor chose not to pursue alleged abortion crimes.

The model law goes beyond criminal penalties "because of lawless radical Democrat prosecutors" who have stated they won't prosecute criminal abortion statutes, Bopp said in an interview this week.

He writes in a memo that "the reality is that most abortion clinics have already moved to large urban centers and college towns where these radical Democrat prosecutors are likely to be elected. If we rely only on criminal penalties, these counties will be sanctuaries for abortion on demand."

Under the model law, the only permissible abortion would be to prevent the immediate death of a pregnant woman, "where delay would create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions," as the Times of Northwest Indiana has reported.

State legislatures may choose to include exceptions for a woman pregnant as a result of rape or incest. "That is not our preferred position, but it is a pro-life position," Bopp said when interviewed by the Tribune-Star.

According to the model law, the exceptions for rape or incest should include "appropriate safeguards," he said. It suggests documentation that the rape or incest has been reported to law enforcement.

Bopp emphasized the model law ensures that no criminal or civil penalty will be imposed on a pregnant woman. "I just don't see how a woman in a crisis pregnancy really has a criminal intent. She's got a crisis situation. She's got two very difficult choices before her, which she is trying to resolve," said Bopp, who has an office Terre Haute.

Under the model law, a doctor or another person who successfully performs an abortion would be subject to prosecution for a level 2 felony, punishable by 10-30 years in prison.

The perpetrator of an incomplete abortion that results in the birth of a live child could be charged with a level 3 felony, punishable by 3-16 years in prison.

Bopp's proposal also would apply the same criminal penalties to any person who provides a pregnant woman, or someone acting on her behalf, any information about where to procure an abortion, including hosting or maintaining a website advising women about abortion availability elsewhere, the Times reported

The legislation would make the sale, distribution or advertising of the two-dose abortion pill to a person likely to use it for an illegal abortion a level 3 felony, as well as taking a pregnant minor across state lines to obtain an abortion without the consent of her parents, the Times article stated.

Bopp said the model law he proposes is not like the Texas' abortion law that empowers private citizens to sue anyone who "aids or abets" an abortion.

The Texas law "empowers any citizen in the state. I don't propose that," he said. "I propose it be the attorney general, prosecutor, or direct relatives."

Bopp was asked about the recent case of a 10-year-old rape victim in Ohio who was six weeks pregnant and ineligible for an abortion in her own state; she traveled to Indiana for the procedure.

Should a 10-year-old rape victim be required to carry a pregnancy to term?

Bopp responded that "it is a pro-life position to support abortion in cases of rape and incest ... It's not a preferred position."

"Why should the (unborn) child be killed for the sins of the father? It's the father that needs to be deterred and punished for this, not the innocent (unborn) child," he said. With an abortion, "The one who suffers the ultimate penalty is the unborn child."

For those who face circumstances similar to the 10-year-old rape victim, "We need to do everything can to support somebody in that situation," Bopp said. "But I don't think it's appropriate to devalue somebody's life because they were conceived in rape."

He is aware that a woman conceived in rape and left on the side of the road may testify when the Indiana legislature convenes later this month to deliberate tougher abortion laws.

Asked whether he anticipates the Indiana legislature will enact the model law or something similar, Bopp said he hoped that would be the case. "We've worked really hard on it and tried to anticipate the problems."

ALCU and other opposition

Reacting to the proposed legislation, Katie Blair, director of advocacy and public policy with the American Civil Liberties Union of Indiana, stated, "This bill is a sweeping abortion ban and it's extremist, which we know Jim Bopp is an extremist as well as folks from Right to Life, so we're not really surprised by it."

She described it as "one of the strictest we're seeing across the nation ... It's a total ban without regard for the health of the mother or any other exception."

There is no carve-out for things like the health of the mother, rape and incest, she said.

Also concerning, Blair said, is "aiding and abetting" language, as well language that would allow the state attorney general to take over responsibilities of a locally-elected county prosecutor who decides not to prosecute cases involving pregnant women "trying to access to heath care."

Blair added, "That is a dramatic over-reach."

Bopp counters that the model law is not a total ban; abortion would be allowed to prevent the death of a pregnant woman.

According to Blair, "We'd hate to see doctors delay life-saving care of a mother ... Are they going to have to wait until a complication they know will turn life threatening gets to the point a woman could be flat lining on the table?" she said.

She added, "The way this is written, it's meant to chill of actions of doctors when working with their patients."

Bopp says for many years prior to Roe, abortions were limited to when it was necessary to save the life of the mother and physicians "had no problems complying."

He added, "I don't want any physician discouraged from being able to perform an abortion when the mother's life is in danger ... I think it's morally required to have that exception."

Blair said a strict abortion law "as sweeping as this is unpopular with Hoosier voters and we know we've had tens of thousands of supporters reach out to lawmakers across the state and are encouraged by the actions of folks speaking out against these kinds of highly dangerous bills."

ACLU of Indiana also is "alarmed" by the proposed civil penalties in the model law, she said.

Dr. Caitlin Bernard, an ob-gyn for Indiana University Health, said the proposed abortion law "is some of the most extreme legislation we've seen in states."

The rape exception for abortion is only optional in the proposed legislation, "which shows how little they really care about women, particularly those experiencing sexual assault," Bernard said.

Also, the exception for the life of the mother "is not clearly spelled out in terms of how far we have to go, how long we have to wait, until they get sick enough that it's life threatening," Bernard said. "That's going to put providers and patients in situations in which we are not providing the safest, evidence-based care we have at the time they present and we are waiting for them to get sicker to meet that extreme kind of exception for life-threatening situations. I think that's incredibly dangerous."

Medicine is not black and white, and physicians are not future tellers, she said. "We can't know when our patient is going to turn the corner and get significantly sicker."

As a result, Bernard believes "that's going to be very dangerous and increase our maternal mortality risks in the state."

Sue Loughlin can be reached at 812-231-4235 or at sue.loughlin@tribstar.com Follow Sue on Twitter @TribStarSue.