Senator Marco Rubio speaks at a rally with Florida Governor Ron DeSantis in Hialeah, Florida, on Aug. 23, 2022. (Eva Marie Uzcategui / Bloomberg via Getty Images)
In a virtual town hall Monday, Florida Republican Sen. Marco Rubio seemed to compare abortion to vehicular manslaughter.
“In most states in this country, if a drunk driver runs a red light and kills a pregnant woman, they are charged with two counts of vehicular manslaughter,” Rubio told Florida attorney John Stemberger, leader of the Florida Family Policy Council, a Christian advocacy group. “One for the child and one for the mother. So we are already, in other areas of the law, recognize that that is a human life worthy of protection of our laws.”
In his comments, captured on video obtained by VICE News, Rubio also said that abortion ban exceptions meant to protect the health of pregnant people are “a massive loophole.”
“They always say, ‘with the exception of life or health of the mother,’ and that ‘or health’ sounds good, but it’s very nuanced. It’s not throwaway line,” he said. “What it means is, some doctor can come forward and say, ‘Well, I know it’s eight-a-half months, I know that she’s due next week, but I think this would be bad for her mental health, I think it would be bad for her spiritual health, for her psychological, if she went ahead.’ I mean, it’s a massive loophole.”
Rubio has previously said that he personally supports abortion restrictions that don’t have exceptions for rape and incest, although he’s willing to support laws that have such exceptions as long as they decrease abortions. But his remarks represent a new, further-right frontier in the senator’s opposition to abortion—especially following the overturning of Roe v. Wade, when abortion bans are no longer a hypothetical possibility but a real restriction on millions of people’s ability to end their pregnancies.
They also come as many Republicans running for election, like Rubio, are trying to publicly downplay their position on abortion in the wake of the resounding defeat of an anti-abortion constitutional amendment in Kansas.
As of 2018, at least 38 states had fetal homicide laws. Under Georgia’s automate your posting-Roe abortion ban, for example, fetuses can now even be claimed as tax dependents.
But granting fetuses full rights and protections—a goal of the so-called “fetal personhood” movement that Rubio appears to evoke in his remarks—could also, in some cases, mean that those rights would compete with or potentially even outstrip those of pregnant people.
In Alabama, the first state in the country to adopt a “fetal personhood clause” in its constitution, a woman beat up her coworker, who shot her and ended her pregnancy. The woman was then indicted for manslaughter. (The case was ultimately dropped.) Compared to every other state, more women have now been arrested in Alabama for using drugs during pregnancy, according to reporting by the Marshall Project, the Frontier, and AL.com.
“This is not just crazy theorizing,” Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women, told VICE News in 2018 of the fight over fetal personhood. “These arguments are already being made and used to control not just abortion but the lives and bodies of pregnant women now.”
In his remarks regarding loopholes, Rubio seemed to be referring to Democrats and abortion rights supporters writ large. But modern-day abortion bans do not “always” allow abortions to preserve the health of pregnant people. Instead, bans in states like Mississippi, Oklahoma, and South Dakota say the procedure can be performed to save a “life.” Doctors have told VICE News that this kind of language blocks them from helping patients who are endangered but not yet at death’s door.
“We’re waiting for patients to get sick, or get sicker, to be sick enough as to be able to intervene,” Dr. Tani Malhotra, a maternal fetal medicine specialist in Ohio, told VICE News this summer.
Additionally, while Rubio claims that doctors may use a “health” exception to refer to a patient’s mental health, that’s not possible in many states. Abortion bans in states such as Alabama, Arkansas, and Georgia explicitly say that medical professionals can only weigh threats to a patient’s physical health as justification for an abortion, or that mental health concerns can’t be considered. Rubio’s home state, Florida, has similar language in its 15-week abortion ban. It says the procedure can be permitted “to save the pregnant woman’s life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition.”
By contrast, before the Supreme Court decided Roe v. Wade in 1973, pregnant people could sometimes get legal abortions if they convinced doctors that, without the procedure, they would die of suicide. That is no longer possible in many states.
In response to a detailed list of questions regarding Rubio’s comments, a spokesperson for his office sent VICE News a press release where Rubio listed questions he sent reporters asking them if they’d asked federally elected Democrats “real questions about abortion.” Those questions include what restrictions they support on abortion, when a politician considers a fetus viable, and whether abortion providers can show a “‘good-faith’ medical judgment” about when continuing a pregnancy after viability may risk someone’s “life or health.”
Most reporters didn’t reply to Rubio’s questionnaire, according to the senator, who accused them of letting Democrats “get away with murder, literally.”
When VICE News repeated a request for comment on Rubio’s Monday remarks, a spokesperson told VICE News over email, “We will stand by his comments. Out of curiosity, have you ever asked a federally elected Democrat any of the below questions?”
Determining when a fetus becomes viable is not a political matter, but a scientific one. Although it’s a moving benchmark, given the complex reality of pregnancy, viability is generally dated to around 24 weeks of pregnancy. In 2019, less than 1 percent of all abortions were performed after 21 weeks of gestation, according to the most recent data available from the CDC. In contrast, almost 80 percent of all abortions occurred at less than 9 weeks of gestation.
There’s relatively little data available on who and why people undergo third-trimester abortions, given how rare they are. But when a University of California, San Francisco researcher interviewed 28 women about their third-trimester abortions, she found that they tended to fall into two camps: either they learned new information about their pregnancies—such as a fetal abnormality, which can sometimes only be discovered later on in pregnancy—or were essentially blocked from getting an abortion earlier.
A 2018 Congressional Service Research report concluded that it is deeply difficult to characterize when people get abortions later in pregnancy over threats to their life. But it has happened: In 2016, Jezebel published the account of a woman who got an abortion at 32 weeks after she discovered that her fetus had a fatal abnormality and that, if she gave birth naturally, she could die.
The group hosting the town hall with Rubio, the Florida Family Policy Council, describes itself as “pro-life, pro-family” organization that champions the idea that “institutions of natural marriage and the family as the foundation of civilization.” It is also a “state-based policy council” affiliated with theFamily Policy Alliance, Focus on the Family, the Alliance Defending Freedom, and the Family Research Council—organizations that have been at the forefront of promoting the national conservative agenda against abortion and LGBTQ+ rights.