WHEN THE Supreme Court was considering Webster vs. Reproductive Health Services, among the papers was an amicus brief containing the recollections of women who had had abortions.
One 70-year-old grandmother described three, all illegal. The last was the worst. She developed an infection and when her husband took her to the hospital, the men from the DA's office arrived at her gurney soon after the doctor did.
In the months to come, they called and visited her home, demanding that she name names. The deputies told her, she remembered, that she could be the second woman in California history for the crime of having an abortion.
Criminalizing abortion has always included this specter, the prospect of bleeding women carted off to jail by men in suits. To defuse it, legislators and lobbyists have said that providers, not their patients, should be prosecuted. It is what they said again in Utah this year, when the legislature passed the most restrictive abortion law in the country.
Unfortunately, the law was passed with such extraordinary haste that it contained a loophole: It allowed for first-degree murder charges against women who had illegal abortions. In theory, those women were eligible for the death penalty. The fact that Utah still executes by firing squad only made matters worse.
Everyone was quick to say that it was an oversight, which is a peculiar way to think of a firing squad, and next month the legislature will meet again to fix it.
The criminalization shuffle that ensued reminded me of that long night's journey into day in 1988 when candidate George Bush said during an evening debate that he hadn't thought through criminal penalties for women who had abortions, and yet woke the next day certain that he opposed prosecuting them.
The first was the honest answer.
Because the problem with making abortion illegal, and making the illegality meaningful, is that the obvious person to prosecute, along with the doctor, is the woman herself. Those opposed to legal abortion dance around the inevitability of this by characterizing the woman as "the other victim," sold a bill of goods, temporarily insane by the very nature of the choice she made.
It is a view that is condescending and insulting. Surely there are some women who have abortions while undone by emotional stress. But surely the majority are responsible adults -- remember that three-quarters of all abortions are performed on women over 20 -- who are not victims but participants.
The grandmother in California was 37 when she had that last abortion, the mother of four who was determined to have no more children, and who set out to find a doctor to help her break the law.
If abortion is truly murder, then women like her are at the very least accessories. If abortion is truly murder, then the woman who has one has ordered up a contract killing.
The absurdity of those statements illuminates the greatest flaw at the heart of the way we talk about this issue. That is that abortion is neither murder nor appendectomy, neither the killing of a full-fledged human being nor the removal of some vestigial organ.
Pregnancy is like no other condition of life, and comparing its ending to any other event is ultimately limited and usually pointless. We need an entirely new way to discuss the matter, but because of the polarization of public policy, the dialogue is rarely innovative and usually venomous. Our analogies are empty.
The Utah law is more of the same. In its refurbished form, it will likely exempt women from prosecution, and not because they are victims. It will do so for the very cynical and political reason that you cannot sell a law that does otherwise.
Ordinary people know that abortion is something between killing and convenience, something not commensurate with either the shooting of another person or a tooth extraction. They know that women who ask for, even beg for the procedure are as much a part of the process as the doctors who perform it, and that to prosecute one and pardon the other reflects confusion and calculation, not compassion.
Yet in Utah, legislators will gather to pluck from this fiasco of oversights and unseemly haste a bill that is nothing but more of the same. And we will have gotten no further in going where we need to go.