Something happened that many of us never thought would happen—the Supreme Court just overturned its infamous 1973 decision Roe v. Wade, which for the most part prohibited the states from regulating abortion in the first and second trimester. The 1992 decision Casey v. Planned Parenthood modified this to prohibit states from abortion regulations that place an “undue burden” on mothers prior to the baby’s “viability.” In other words, Roe and Casey legalized early-term abortions in all of the 50 states.
But that has all changed now with the decision in Dobbs v. Jackson Women’s Health that was issued on June 24, 2022. By overturning Roe and Casey, the Supreme Court has returned abortion laws to the domain of the states—which is the rightful constitutional place for such criminal laws (made especially clear by the Tenth Amendment). Most criminal laws, part of state “police powers,” should be set by the states, not the federal government. With Roe rightfully overturned, this means a state like California can continue to permit abortion, while a state like Alabama can outlaw it completely.
We should celebrate the overturning of Roe v. Wade, both because it is the correct decision per the U.S. Constitution, but also because it ends the legal protection of the “right” for a mother to kill her baby inside her womb. However, while we celebrate Roe being overturned, we must also recognize this is a new stage in the so-called “pro-life” movement. If the goal is to outlaw abortion, then we must now seek to outlaw abortion in as many states as possible. Overturning Roe was just the beginning.
Yet even here there seems to be disagreement, as some who call themselves “pro-life” speak as if the goal is only to reduce abortions (a goal many “pro-choicers” also speak of). Others, like myself, say we certainly want there to be no abortions, but there is also the goal to simply outlaw abortion in all of the United States. Abortion is murder, and therefore all people who voluntarily participate in abortion should be charged with murder. (This is why “anti-abortion” is often a better term than “pro-life.”)
Thus, with the anticipation of Roe being overturned thanks to a leaked first draft of the opinion, a new debate arose among those in the so-called “pro-life” camp over two questions: (1) whether the mother who aborts her child should be punished by law, and (2) what the penalty for abortion should be for the doctor and the mother.
Should the Mother Who Aborts Her Baby Be Punished?
This question has generated some serious debate, as many in the “pro-life” camp probably never expected us to be in this situation. Let’s start with where there is agreement. Everyone on the pro-life side believes abortion is murder and is thus morally impermissible. Everyone agrees an abortion doctor/provider should be charged with murder, as he is the one who performs the act of killing the child. Therefore, states should pass laws criminalizing abortion as a form of murder, and states should shut down abortion clinics and prosecute abortion doctors. So far, so good.
Yet it logically follows that a woman who procures an abortion resulting in the death of her child should also be prosecuted for the crime of murder. Though the woman who hires an abortion doctor did not do the killing herself, she is an accomplice to the murder or a conspirator. Accomplice liability (sometimes called aiding and abetting) involves intentionally assisting another in committing a crime, while conspiracy involves an intentional agreement, even implied, to commit an illegal act.
In the case of an abortion, the mother’s actions are a cause of the baby’s death, without which the baby would still live. The woman and the abortion doctor partnered to murder her baby. Thus, if the woman voluntarily sought out the abortion—meaning she was not coerced by someone else (who would then be charged himself in the matter)—then she was guilty for the murder. She actively sought out the “doctor” to kill the baby in her womb. The woman is comparable to the man who hires a hit man to kill his wife. He is a murderer, even if indirectly. This is how state laws work for conspiracy in such murder.
It is also how the Bible understands the guilt for murder. King David instructed his men in a letter to have Uriah murdered—“Set Uriah in the forefront of the hardest fighting, and then draw back from him, that he may be struck down, and die” (2 Samuel 11:15). Though David did not directly kill Uriah, the prophet Nathan told David that he did “what is evil” in God’s sight and “struck down Uriah the Hittite with the sword” (2 Samuel 12:9). In other words, David was guilty of killing Uriah, an innocent man. And God punished him accordingly (2 Samuel 12:10). Hiring someone else to murder for you is still murder.
Let us also ask this question—if a woman who voluntarily had an abortion performed is not guilty for the crime of abortion, then what is she guilty of? Did she do nothing wrong? Was she a passive agent in the murder? The problem with saying the woman is not guilty of murder is this makes her to be a victim rather than a perpetrator of the crime. Sadly, this is how many “pro-life” advocates speak. Yes, there are many bad actors in the abortion industry, including those who teach abortion is morally permissible and encourage women to have an abortion (including employers that want childless women workers). However, that does not relieve women from moral and legal agency for committing an abortion. There are also lots of bad influences that lead to a person using heroin, or even selling it, but our laws do not say such a person is not legally responsible for breaking drug laws because he had bad parents and attended a drug-ridden school.
One of the greatest problems in the entire abortion industry is the fact that abortion has been legal. The law is a teacher, and the law saying abortion is permitted and a constitutional “right” teaches women and men that it is not morally wrong. But if a state outlaws abortion, then that has all changed. The law will explicitly teach that abortion is immoral and considered murder by the civil authorities, and those who carry out such murder will be punished. This teaching should be reflected in all state institutions, including public schools. Of course, women will only be charged for crimes after such a law is enacted, meaning there will be no ex post facto laws.
In many states, if a person murders both a pregnant woman and the baby in her womb, he will be charged with double homicide. It is only when the mother murders her own baby that she is not guilty of murder. This is a double standard. Consistency demands that the mother who kills her child via abortion is punished for the crime along with the abortion doctor.
A Critique of Those Who Do Not Want to Prosecute the Mother
Now some “pro-life” leaders are saying we should only pass laws that lead to the prosecution of abortion doctors, not the women who have the abortion performed on them. Let’s start with the argument by the influential Baptist Al Mohler from back in 2016:
But here’s where the pro-life movement returns back to say, who is the guilty party in an abortion? It is the person who brings about the death of the child. The woman seeking the abortion is not without moral responsibility, but she is not herself bringing about the death of the unborn human baby. That’s the crucial issue here, and that’s why the pro-life movement has consistently sought to criminalize abortion at the level of the person performing the abortion.
This argument flatly misunderstands causation in criminal law, including accomplice murder and conspiracy. Yes, the person directly performing the abortion is guilty for bringing about the death of the child. But so is the mother who voluntarily goes to see the abortion doctor to have her baby killed. Mohler says “she is not herself bringing about the death of the unborn human baby.” Following this logic, then neither did David “bring about” the death of Uriah, since he asked someone else to do the killing for him. Mohler fails to account for the role of indirect actions, wanting only to prosecute the hit man and not the guy who paid him to kill.
Next let’s turn to the argument by another Baptist, Denny Burk, who describes what I am advocating as “abolitionist” and argues the “pro-life” movement has always insisted on not prosecuting mothers who kill their children. Let’s just stop right there and say it is irrelevant what some movement said prior to Roe being overturned. Moreover, many states pre-Roe did incriminate women who had abortions (see below). I have long considered many within the Republican Party to only give lip service to being “pro-life,” and thus they would not actually know what to do if Roe were overturned. It is quite likely that many in the “pro-life” movement maintained a more palatable position so as to gain political favor. There is no reason for that now. We were previously working with the Roe boundaries. But it is a new age. As for the term “abolitionism,” this is often used for those who reject incrementalist approaches to outlawing abortion (which I do not). Thus, this is a separate issue and a straw man argument by Burk.
Burk has two arguments against prosecuting women who commit abortions. First is a moral argument that “it is not always clear what level of culpability should be assigned to the mother.” While the mother has “moral agency and culpability in seeking out an abortion… it is not always straightforward to what degree she is morally implicated.” Burk adds:
The issue is whether there has been a true ‘meeting of the minds’ in which the woman contracting the abortion has the same understanding of the act and same moral proximity to it as the abortionist. Does she know that abortion involves the killing of a human being? Was she coerced? Etc. To be sure, many women know exactly what they are doing when they get an abortion. But many others have imbibed the lie that they are simply having an inhuman clump of cells removed. Both women have moral agency and culpability, but do they really have equal culpability regardless of whether there has been a true ‘meeting of the minds’?
His point is essentially that while the abortion doctor has clear understanding that he is killing a baby, the woman may have a lesser understanding of what is taking place (raising the legal issue of the mens rea, “guilty mind”). While I agree this sometimes happens, it in no way follows that the woman should not be prosecuted for the abortion. The issue of the woman’s understanding in an abortion is a question for the prosecutor and the judge/jury. And the punishment for the woman’s role in abortion is one for judges and legislatures. Even Burk acknowledges this “does not exclude the possibility of legal consequences for the mother” but only “addresses the difficulty of crafting a legal standard that would take into account the vicissitudes of every situation.” Okay, so then the prosecutor can charge the abortion doctor with first-degree murder and the woman with a lesser charge if he does not think he can get her on first-degree murder. Problem solved. There is no reason to conclude that because some women are less guilty in abortion, then no women should be prosecuted for abortion.
Burk appeals to Numbers 35 for the difference in culpability, such as that “between manslaughter and first degree murder.” Burk links to his own 2006 article where he said of Numbers 35, “The manslayer is one who kills another person unintentionally. This person is not liable for the death penalty as long as he flees to one of the cities of refuge… But the murderer is one who kills another person with malicious intent. This person is guilty of a heinous crime and must be put to death… The key thing to note is that the intention of the person doing the killing determines the criminality of the act.” Burk’s distinction is certainly valid, but it does not apply to a woman who visits an abortion doctor. She does not just stumble upon the abortion clinic, as if it were some sort of accident. She may deny the baby is a human, but that is becoming less convincing all the time. This will especially be the case where a state law teaches people that abortion is murder. Ironically, Burk even says in that article that “people who continue to participate in destroying human embryos while eschewing any serious moral reflection on the humanity of those embryos are at the very least morally guilty of something like negligent homicide.” Sounds good.
While still on this subject of the woman’s culpability in abortion, let me mention another article by “conservative” commentator and lawyer David French, who claims that most women who get abortions are “‘well-meaning’ even if they are terribly, tragically wrong.” French says, “There may be some women, at the fringes, who believe ‘my abortion is the same as killing a two-year-old, and I just don’t care,’ but that is absolutely not the daily reality of abortion in America. Not only is there no intent to kill, there is no real awareness of what abortion truly does.” Thus, if we prosecute women who have abortions, this “could result in the prosecution of thousands upon thousands of young women who genuinely do not believe they are killing a child. This is a material distinction from the murder and manslaughter charges we see in criminal law today.”
It is hard to overstate how wrong French is on this point. First, a woman not “believing” abortion involves the killing of a child does not exonerate her from all charges. Such a lack of intent may serve as a defense to first-degree murder, but it would not serve as a defense to something like manslaughter (which French even mentions). What French does not state here is how difficult the issue of “intent” can be in criminal law. Intent is sometimes understood as the “purpose” of producing the result, while at other times intent is understood as “knowledge” that the result is substantially certain as a result of the act (which thus includes indifference, the “I don’t care attitude”). In the case of abortion, it may not matter that a woman does not believe what she “aborted” was a human being. She still knew that the act of abortion would lead to the “termination” of the fetus. There is also an argument that a court here should use objective standard rather than a subjective one—meaning we should ask whether a reasonable person would know that abortion involves the killing of a child. The woman knows she is “terminating” something growing in her, and maybe she should know what she is terminating is a baby. The Supreme Court has considered the possibility of an “objective” standard for intent in Farmer v. Brennan, 511 U.S. 825, 838-40 (1994). If a state government does not want intent to be an issue in its courts, then the legislature can pass a “strict liability” statute for abortion. “Strict liability” means there is no mental requirement for the crime. If you commit the illegal act, then you are guilty. Such laws are used sometimes for drug possession and “statutory” rape.
A second response to French is that it is simply not the case that for most women who procure an abortion “there is not real awareness of what abortion truly does.” Pregnant women know there is at least a “potential” life inside them, which is why they are seeking an abortion in the first place. They want to prevent birthing a baby within nine months. To call this “well-meaning,” as French does, is rather absurd. Moreover, if a state passes a law outlawing abortion, they can have a campaign to promote the law and teach women that abortion is murder. Problem solved.
Let me draw out this latter argument some more. If there is so much concern about the “lack of knowledge and intent” by women who get abortions, then states that outlaw abortion can make efforts to address this problem. For example, a state legislature could institute a flat penalty for any woman who is found guilty of having an abortion (making it easy on the courts). They could start it at something low (say, one year in prison), and increase the penalty over time as knowledge of the wrongness of abortion increases. To aid this effort, the legislature could carry out a state campaign that teaches abortion is murder and carries a stiff penalty. Billboard signs could be put up along highways, and public schools could be required to teach the law to all high schoolers. States have effectively carried on such campaigns for drunk driving. Why can’t they do the same for abortion? Do Burk and French really lack such creativity?
Next let’s turn to Burk’s second argument for why a woman should not be punished for abortion, which is the legal argument that “prosecuting the mother can undermine the state’s ability to punish the abortionist.” What he means by this is that “As a matter of criminal evidentiary law, if the court treated the woman as an accomplice, she could not testify against the abortionist, and the case against the abortionist would be thrown out” (quoting Americans Unite for Life). I recognize that this is a legitimate problem.
However, there are ways around it. One option is for legislatures to pass a statute that allows women charged as accomplices to testify against abortion doctors in exchange for a lesser sentence, or at least not admit such testimony as evidence against her. The other option is for prosecutors to grant some women full immunity so they can testify against an abortion doctor. But if the abortion doctor committed a large number of abortions, then the prosecutor would only grant immunity to some women to testify against the abortion doctor while prosecuting the other women for accomplice murder. Burk even cites a 1985 law journal article by James Witherspoon that made this point—“those states which did incriminate the woman’s participation often enacted statutes granting a woman immunity from prosecution in exchange for her testimony, or providing that this evidence would not be admissible in any criminal prosecution against her.”
Ironically, this article Burk cites shows there is strong precedent for American state laws that incriminate women who have abortions. Witherspoon’s survey of legislative history shows many states pre-Roe actually did incriminate a mother who had an abortion—“at least seventeen or more than one-third of the state legislatures did enact laws expressly incriminating the woman’s participation in her own abortion” (James S. Witherspoon, “Reexamining Roe,” 17 St. Mary’s Law Journal 29, 59 [1985–6]). Witherspoon provides an extensive list of those 19th century state statutes, which made made it a crime for a woman to “‘take’ abortifacient drugs, to ‘submit’ or ‘consent’ to, or ‘suffer’ the use of instruments upon her to produce an abortion, or to ‘use’ or ‘cause to be used’ upon herself instruments with this purpose.”[1] However, these states “generally imposed less severe penalties on the woman for this participation than on the person who actually attempted to induce the abortion” (58–59). Incriminating women who attain abortions is part of American legal tradition, yet Burk calls those advocating such laws today “abolitionists.”
A Counterargument to Burk
So far I have argued my case for prosecuting women who commit abortions, as well as critiqued arguments against this by Al Mohler, Denny Burk, and David French. Let me now add a counterargument to their position that women should not be prosecuted for abortion. The argument is that if the state does not prosecute any women for abortion, this removes the only legal deterrent to them aborting their babies. In other words, through education women could come to fully understand that abortion is murder, yet they would still face no penalty for seeking out an illegal abortion doctor or abortion pills to kill their baby. In such a case, the law provides no incentive for women to not kill their children in the womb.
This is especially a problem because there will be many states (and countries) with legal abortion to which women can travel and have their baby killed. It is likely abortion doctors will only work in states where abortion is legal. So if women who commit abortion are not punished, and they just travel to other states for abortion (or attain abortion pills), then no one will be punished for abortion, neither abortion doctors nor women getting abortions.
Thus, women who get an abortion must be punished if our anti-abortion laws will have any teeth. This is especially the case for women crossing state or national lines to attain the murder for their children. Laws must be passed prohibiting the travel to other states to commit abortion. (Some argue the right to interstate travel prevents states from banning women crossing state lines to attain abortions, as in Kavanaugh’s concurrence in Dobbs, p. 133. This will eventually be litigated. I would only say for now that the right to travel does not include the right to travel to commit murder.) Burk’s view would not even accomplish what he says is his goal, which is the decrease in the number of abortions. Abortions would in some cases be harder to attain, but they could still be legally attained by women who live in states where abortion is outlawed.
What Should Be the Penalty for Abortion?
Now let’s turn briefly to the final question regarding the penalty for abortion. In one sense, this is a simple question, as states already have laws on their books for murder. Abortion is murder, and therefore the state should punish abortion in the same way. So the real question is which murder charge should be used for abortion. I see no reason to not charge abortion doctors with first-degree murder, as they will almost always meet state requirements for the highest murder charge, which includes that it is premeditated and deliberated.
But what charge should a mother who aborts her baby receive? This is a more difficult question. In many instances, a woman who seeks out an abortion will meet the requirements for first-degree murder, including premeditation. However, there may be mitigating factors, meaning circumstances that warrant a lesser charge. Coercion—or even just heavy persuasion to commit abortion by others such as the baby’s father—could count as either a defense to the charge or a mitigating factor (and the pressuring party could be charged accordingly). The age of the woman may also be considered, as there is a difference between a 12-year-old girl and a 30-year-old woman who aborts her baby.
I argued above that a woman committing abortion is comparable to someone hiring an assassin to commit murder for them. It therefore makes sense to charge a woman who commits abortion with the same count of murder that a man who hires an assassin would be charged with. That often times will be first-degree murder. It makes little sense to charge the woman with a lesser crime if there are no mitigating factors. She is guilty of planning and carrying out the murder of her child. Alternatively, states could pass laws with flat penalties for women who commit abortion (as mentioned above).
Some states still have the death penalty for first-degree murder, which raises the question whether a woman who commits abortion should receive the death penalty. I am well aware that I am in the ever-increasing minority today for supporting the death penalty for first-degree murder. Yet this is the teaching of Genesis 9:6—“Whoever sheds the blood of man, by man shall his blood be shed.” And in biblical case law, if there is harm to a baby in the womb, the penalty was “life for life” (Exodus 21:22-25; see here for debate over this passage). In the case of a baby in the womb being murdered, it is just for the murderer(s) to receive the death penalty.
I also think capital punishment is far more ethical than locking up a human in a cage for life like he or she is an animal. I certainly think abortion “doctors” should receive the death penalty for their wicked and large-scale murder. In some states, the death penalty may be considered for such abortionists, and less likely for a woman who commits abortion. But for most states right now, the death penalty is not on the table. They use prison and fines for most crimes. Thus, the debate is over just how long of a prison sentence and/or how much of a fine a woman should receive for murdering her baby. And that is something legislatures will have to debate.
Addendum (8/11/22)
I thought I would add a few points here in response to common questions about outlawing abortion:
(1) How do we prevent prosecution for miscarriage? Usually no one else knows about a miscarriage except a doctor, so it should not be too hard to avoid this problem. There should be good reason to think a woman intentionally killed her baby for there to be legal consequences. The bigger challenge is that many chemical abortions are similarly hard to know about.
(2) Should there be exceptions for abortion where the pregnancy is not viable? This is known as an ectopic pregnancy, which pro-life ethicists do not consider this to be an abortion. Thus, laws against abortion should clarify this point.
(3) Should the civil government do things to help encourage women to not have an abortion? Yes, I think government should do things to get out of the way of people who want children. This includes bigger tax credits for people with children and deregulating adoption/foster work and leaving more in the hands of private agencies and the church.
[1] Witherspoon’s article cites the following state statutes incriminating a mother who has an abortion: Arizona, ARIZ. PEN. CODE § 455 (1887); California, Act of May 20, 1861, ch. 521, 1861 CAL. STAT. 588; Act of Feb. 14, 1872, CAL. PEN. CODE § 275 (1872); Connecticut, Act of June 23, 1860, ch. 71, 1860 CONN. AcTs 65-66; Idaho, IDAHO REV. STAT. § 6795 (1887); Indiana, Act of Apr. 14, 1881, ch. 37, § 23, 1881 IND. LAWS 177; Minnesota, Act of Mar. 10, 1873, ch. 9, 1873 MINN. LAWS 117-19; Montana, MONT. REV. CODE § 94-402 (1947); Nevada, Act of Feb. 16, 1869, ch. 22, § 1, 1869 NEV. LAWS 64-65; NEV. REV. STAT. § 200.220 (1959); New Hampshire, Act of Jan. 4, 1849, ch. 743, 1848 N.H. LAWS 708-09; New York, Act of May 13, 1845, ch. 260, 1845 N.Y. LAWS 285-86; Act of Apr. 6, 1872, ch. 181, 1872 N.Y. LAWS 509-10; North Dakota, Act of Feb. 17, 1877, DAK. PEN. CODE § 338; Oklahoma, OKLA. STAT. § 2188 (1890); OKLA. REV. LAWS § 2437 (1910); South Carolina, Act of Mar. 24, 1883, no. 354, 1883 S.C. ACTS 547-48; South Dakota, Act of Feb. 17, 1877, DAK. PEN. CODE § 338; Utah, UTAH CODE ANN. § 76-2-2 (1953); Wisconsin, Act of May 17, 1858, Wis. REV. STAT. ch. 169, § 59 (1858); Wyoming, ch. 73, § 32, 1890 Wyo. LAWS 131.
