Imagine, for a moment, that a 10-year-old from Ohio was impregnated by her father and, upon discovery of the pregnancy, her mother hastily flew her to Nevada for an abortion. Now imagine if the “Protect our Girls” statutory initiative — which is currently gathering signatures in Nevada to require parental notification before a minor receives an abortion — was already on the books. Under that law, would the father need to be notified of the abortion?

Or imagine that the same 10-year-old from Ohio was instead impregnated by a close family acquaintance and, upon discovery of the pregnancy, her parents hastily flew the family to Las Vegas for her abortion. Under the same “Protect our Girls” statutory initiative — which requires parental notices to be addressed to “the usual place of abode of the parent or guardian” — would the parents need to fly back to their home in Ohio to receive the parental notification before their daughter’s abortion?

If you’re thinking these examples are a little contrived, designed to piggyback on the immediate topicality of Ohio’s most infamous 10-year-old rape victim and abortion patient, there’s admittedly some truth to that. On the other hand, Ohio alone had 52 abortion patients under the age of 15 in 2020 — a marked decline from the nearly 200 severely underaged abortion patients the state had in 2010. That means, even after quartering the number of severely underaged minors receiving abortions over the past decade, one severely underaged girl was an abortion patient in Ohio each and every week in 2020.

Zooming out to the rest of the country, according to the Centers for Disease Control and Prevention, 2,253 girls aged 10-14 gave birth in the United States in 2016. Additionally, four out of every 100,000 girls between the ages of 10 and 12 gave birth that year. All of this means there has been and will be at least one 10-year-old rape victim (plus or minus a year — according to Johns Hopkins All Children’s Hospital, puberty for girls starts around age 7 or 8) in our nation of over 330 million who will need an abortion each year. However, with Roe v. Wade overturned and many states’s abortion trigger laws now in effect, some of those victims won’t be able to get abortions in their home states anymore.

To anyone who actually read anti-abortion legislation or talked to people like Jim Bopp, general counsel for the National Right to Life and former Republican National Committee Vice Chairman, the idea that states might deny pre-teen rape victims access to abortions once Roe v. Wade was overturned wasn’t a surprise. As Bopp explained when he was recently interviewed by former Nevada Independent reporter Megan Messerly for Politico, National Right to Life’s model anti-abortion legislation, were it applied to Ohio’s 10-year-old rape victim, would categorically prohibit her, or anyone else, from getting an abortion:

“She would have had the baby, and as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child.”

Given Bopp’s role with National Right to Life, a prominent anti-abortion organization, it’s logically defensible — if morally reprehensible — for him and his organization to advocate for maximalist anti-abortion legislation that forces 10-year-old rape victims to carry their pregnancies to term. Advocacy organizations push the bleeding edge of their positions as part of their negotiating strategy all of the time. There’s no reason to expect anti-abortion organizations or their general counsels to behave differently. 

Less defensible, however, are the state legislators who lazily copied and voted for similar legislation, seemingly secure in the assumption that, with Roe v. Wade in effect, any problems created from their overreaching or sloppily written legislation would be semi-reliably checked in court. It didn’t matter if their statutes were unworkable or would produce unconscionably inhuman results were they ever enforced — none of that language would enter the light of statutory reality. They could therefore write legislation promising to end abortion to a degree Nicolae Ceaușescu might envy — satisfying anti-abortion activists, organizations, and their donors — all while being judicially absolved of any responsibility for the consequences of their shameless pandering to their base.

Trouble is, Roe v. Wade is gone now. That’s a problem, even for legislators who oppose abortion, because, as Jane Coaston recently pointed out for The New York Times:

Maximalism is a privilege, an indication of time spent imagining myriad possibilities without ever needing to put them into practice. And it’s one that some people who oppose abortion have had for decades. No need to explain what the punishments for abortion should be or even what constitutes an abortion (some forms of birth control, perhaps?) if you have the luxury of never needing to make the case to a voting public that very much disagrees with you.

But now that privilege is gone.

Instead of recognizing that, however, many anti-abortion politicians continue to double down.

Republican U.S. Senate candidate Adam Laxalt, who signed onto multiple legal efforts to restrict abortion access while he served as attorney general and has been endorsed by both Nevada Right to Life and National Right to Life (that’s Jim Bopp’s organization), recently told a group of religious leaders in Reno that “it’s sad, it doesn’t make [him] happy” that his prospective constituents (that’s us) aren’t more opposed to abortion. 

Meanwhile, Democratic Sen. Catherine Cortez Masto recently tried to pass a bill through unanimous consent barring restrictions on women traveling to another state (like Nevada) to get a legal abortion — the attempt failed because of Republican opposition. To understand why it should have passed, imagine if Utah decided to make it illegal for their state’s citizens to travel to Nevada to gamble or drink hard liquor — or, if you’re of a more conservative bent, imagine if California made it illegal for their state’s citizens to travel to Nevada to shoot an assault rifle at a gun range.

Because our current crop of abortion-opposing politicians still refuse to accept that they now need to proofread the legislation they’re writing to ensure it doesn’t produce catastrophically inhumane corner cases when it’s strictly applied — the Supreme Court certainly won’t do it for them anymore — that means that responsibility now belongs to us. This is especially true when some of that legislation is introduced through our state’s voter initiative process.

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Unfortunately, as one young woman in Winnemucca recently discovered, we don’t always do as thorough of a job as we should.

After the Supreme Court decided Roe v. Wade in 1973, the Legislature passed Assembly Bill 319, which sought to codify the protections established in that case into state law while also distributing penalties for abortions conducted outside of the protections established within the law. One of the protections — the 24 week window pregnant women have to receive a doctor-assisted abortion — was further protected through a voter-approved ballot measure in 1990. 

Unfortunately, the voters (again, that’s us) never took a hard look at the penalties passed in 1973, including the penalty for taking drugs to terminate a pregnancy after the 24th week of pregnancy. Consequently, where most states with far less tolerance of abortion focus on suing or jailing doctors who perform abortions, Nevada is instead one of a very short list of states where formerly pregnant people can actually be prosecuted and imprisoned for getting an abortion — at least when a prosecutor chooses to read our state’s laws strictly and prosecutes accordingly.

That choice, when it’s exercised, is the product of prosecutorial discretion. Prosecutors can’t prosecute every single lawbreaker — we simply break too many of them (some people routinely drive faster than the speed limit, for example) and there are neither enough lawyers, judges, nor prison beds to fully enforce the law to the letter. Consequently, prosecutors have the discretion to pick and choose which laws they will focus on and which laws they will ignore. That, incidentally, is why district attorneys and attorneys general are elected, to help ensure they use their discretion wisely in a way congruent with our own needs and interests.

For an example of prosecutorial discretion in action, and going back to Ohio’s Heartbeat Law for a moment, Ohio’s Legislative Services Commission stated that Ohio’s abortion restrictions apply regardless of the circumstances of conception or the age of the mother. Despite that, Ohio’s attorney general’s Office, chief prosecutor for the state, signaled (after briefly denying that the 10-year-old rape victim existed) that the 10-year-old may have been permitted under Ohio’s abortion laws to receive an abortion — assuming, anyway, there was no fetal heartbeat and the attorney general’s office agreed with a medical professional that the mother (once again, a 10-year-old rape victim) was experiencing a medical emergency. 

In other words, Ohio’s elected attorney general wanted his constituents to know he may, if and only if it proved to be more politically expensive to do otherwise than it would be to prosecute a doctor for giving a 10-year-old rape victim an abortion, exercise his discretion and choose not to prosecute a doctor giving a 10-year-old rape victim an abortion. If you think that message isn’t clear, imagine being a doctor with a 10-year-old rape victim as a patient who’s trying to decide whether or not they’ll still have a career in Ohio if they treat the victim — or a defense attorney responsible for defending that choice in either direction.

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That’s why, bringing matters closer to home, it’s important for us — especially when we’re in a position to pass statutory language ourselves, language which can only be overturned with a subsequent voter referendum years later — to consider how each of our laws may be applied by a particularly zealous prosecutor. 

Yes, if a reasonable person is elected as chief prosecutor for a county or state, they might surely provide an exception to the strict enforcement of their laws — but there’s no guarantee any specific prosecutor will be reasonable and even less of a guarantee their definition of reasonable aligns with ours. This is especially true when their unreasonableness looks like sterile, impersonal crime statistics — say, number of illegal abortions prosecuted — instead of very specific and nationally notable 10-year-olds. Just ask any teen with a felony record and a lifelong requirement to register as a sex offender because they had the temerity to send a picture of their underaged bodies to their romantic partner, all so their local and state prosecutors could claim they were being tough on child pornography.

At the same time, it’s also important for activists and politicians to realize they might actually get their way once in a while, despite our country’s various and overlapping checks and balances, and to seriously consider what the world might look like when or if that happens. Additionally, they should also consider how the rest of us might feel about living in the world their advocacy created — and what we might do to them and their cause, in turn, once we gain political power ourselves.

David Colborne ran for office twice and served on the executive committees for his state and county Libertarian Party chapters. He is now an IT manager, a registered nonpartisan voter, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Twitter @DavidColborne or email him at [email protected].