One issue that often arises in pro-life discussions is whether or not the woman having an abortion should be charged with, and prosecuted for, a crime. It is an important question and one in which prolifers can differ on. Most have said no: our aim is to end abortion, not punish the women.
But it is nonetheless a cause of great controversy for some, and two recent events have re-ignited the debate. One was when Donald Trump said a few months ago that women should be prosecuted for having an abortion. But in typical fashion he flip-flopped on this and came up with a number of different positions in just a few days. So we can ignore him and his ever-changing views.
A second reason why this debate has arisen is because of a pro-life bill introduced into the Victorian Parliament by Dr Rachel Carling-Jenkins, the Infant Viability Bill 2015, which will soon be debated and voted on. Part Three has some prolifers concerned because it says, in part, this:
10 New section 65A inserted
After section 65 of the Crimes Act 1958 insert—
65A Late-term abortions
(1) A person commits an offence if the person performs a late-term abortion.
(2) A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).
(3) A woman who consents to, or assists in, the performance of a late-term abortion on herself does not commit an offence against subsection (1).
(a) a person is found guilty of an offence against subsection (1); and
(b) the offence took place in a hospital; and
(c) the operator of the hospital failed to exercise due diligence to prevent the commission of the offence—
Thus the abortion provider will be prosecuted and punished, but not the woman seeking an abortion. Some claim this is quite wrong, because abortion is the deliberate taking of an innocent human life, and the woman engaging in this is therefore guilty and should be punished as well.
That in a nutshell is what this particular debate is about in the prolife movement. So who is right here? People like Dr Carling-Jenkins, or her critics? This is a complex issue and one that needs to be carefully assessed and discussed. I will take the position which most prolifers have held to that says the doctor or abortionist should chiefly be targeted, but not as much the woman. As will be seen, this usually was the case when abortion was illegal.
A few caveats
Let me quickly deal with a few issues before moving on with this important discussion.
One, I have little time for the prolife purists. These are the ones who – to my mind – act in Pharisaical fashion, claiming we must have all or nothing – and they usually end up with nothing, and it is abortion business as usual. They dislike incrementalism, and say we must act to end all abortion fully and in one fell swoop, with no incremental steps.
But most prolifers are more realistic, and know that in a fallen world, while we of course all want and must aim for the complete elimination of abortion, often a step by step approach is the only real way to get there. Unlike the purists, it is always better to have, for a start, 30 percent or 40 percent of abortions stopped than to have none at all stopped. Ask any saved baby as a result of such incremental steps which position he or she would prefer! But I discuss this in more detail elsewhere: billmuehlenberg.com/2016/04/03/purists-politics-presidents-pharisees-dead-babies/
Two. I am not a theonomist. That is, I believe the Old Testament civil laws and the punishments that went with them were specifically meant for the ancient nation of Israel which was in covenant relationship with Yahweh. God has no such covenant relationship with modern secular nations.
While the moral laws are still binding, as most Christians agree, the civil laws (and certainly the ceremonial laws) are not. But how exactly a moral law such as ‘thou shall commit no murder’ is teased out in the modern state is a matter of social, philosophical and legal discussion and debate.
Three, I am writing here as both a Christian and a prolifer. These two influences should feed off each other. And I think they should more or less align with each other. However much of what will be said here can be said without direct appeal to Scripture or theological truths – but I believe they do not conflict with them either.
OK, with those prefatory remarks out of the way, let me look at two main issues: how things were when abortion was illegal, and how we might think about prosecuting women who have aborted their unborn babies.
One way to get a handle on all this is to simply look at what happened to women when abortion was illegal. I will mainly focus on America here, but much of what I say applies to Australia and elsewhere. The short version is this: women were seldom, if ever, charged with a criminal offence when abortion was illegal.
Let me appeal to some experts here on this. American commentator Joe Carter had an important piece on this recently in which he looks at what happened in the US prior to Roe v. Wade:
We should first ask whether women who had abortions were treated as criminals prior to the Roe v. Wade decision. The short answer: No, they were not. Clarke Forsythe, president of Americans United for Life and one of the premier legal scholars on abortion laws in the United States, explains that before the Roe case, individual states not only targeted abortionists but also treated women as a victim of the abortionist:
“[T[he almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second “victim” of abortion; state courts expressly called the woman a second “victim.” Abortionists were the exclusive target of the law….
This political claim [that that women were jailed before Roe and would be jailed if Roe falls] is not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.”
The original 2010 article by Forsythe, complete with 27 footnotes, can be found here: www.aul.org/2010/04/why-the-states-did-not-prosecute-women-for-abortion-before-roe-v-wade/
A week ago Robert P. George and Ramesh Ponnuru also penned a piece on this issue. In it they say:
Historically our anti-abortion laws did what the pro-life movement wants laws to do today: They recognized that unborn children are living human beings with the same right not to be killed that the rest of us possess; they gave effect to this recognition by prohibiting abortion; and they imposed no legal penalty on the mothers. The laws were right on all these points, and most pro-lifers are right on all of them today. That movement — the great human-rights movement of our time — has rightly sought to save babies, not punish women. And it has rightly understood that we can save unborn babies without threatening to punish their mothers.
So, it seems that for the most part women never were charged or punished for a crime when abortion was illegal. The emphasis was on curtailing abortion, not punishing the woman. In the light of the bill now before Parliament, which will include at least some criminal prosecution (for the abortion provider), what about the woman?
Should she be charged as well? And for what crime? And what would be the fitting penalty? As mentioned, perhaps most prolifers do not favour punishing the woman. As George and Ponnuru put it:
The topic came up in Roe v. Wade itself. In his opinion striking down nearly all state laws against abortion, Justice Harry Blackmun noted that “many states” did not provide for the prosecution of women for cooperating in abortions performed on them….
Most pro-lifers say they have no desire to punish women who seek abortions. All the major pro-life organizations share this view. The Republican platform, after declaring that unborn children have a right to life, affirms “our moral obligation to assist, rather than penalize, women challenged by an unplanned pregnancy.” Anti-abortion laws traditionally have shown no interest in punishing the women. On this point, at least, Blackmun was correct; indeed, he understated the truth. Most states had explicit exemptions for the women, and the rest had exemptions in practice.
Of course all this is not to say the woman is completely innocent and deserves no punishment. To some extent of course she was complicit in the abortion. Yes, many times coercion, duress and pressure from others leads a woman to do this. In that sense the woman is often a victim indeed. As Adam Peters writes on the Live Action website:
According to some studies, more than half of women who abort are pressured to do so, which makes sense; an abortion is a lot cheaper than child support. For some men, it’s also a good way to stay out of jail: time and again, child sex predators have used abortion to keep their crimes hidden and ongoing. What does that pressure look like? Personal blackmail and financial coercion are common features. Sometimes it involves more trauma–the blunt force kind.
It did for Roxanne Fernando; she was beaten to death by her boyfriend when she wouldn’t abort their child. Other women have been shot, stabbed, burned and smothered for the same reason, which helps explain why the CDC lists homicide as a leading cause of death during pregnancy.
Then there are some women who know exactly what an abortion is, and delight in having them. They shamelessly praise and promote abortion, and brag about how many they have had. These women are of course far guiltier, and some sort of punishment certainly seems just here.
Joe Carter put it this way:
Perhaps the most succinct explanation for why women who have abortions should not be charged with a criminal offense comes from Frederica Mathewes-Green: “The goal of abortion laws is to stop abortion. And the person to stop is not the woman, who may have only one abortion in her life, but the doctor who thinks it a good idea to sit on a stool all day aborting babies. End the abortion business and you end abortion. The suggestion that it’s necessary to punish post-abortion women reveals a taste for vengeance.”
We should indeed be seeking justice rather than vengeance. And as Christians we must also recognize that sometimes in our fallen world the most we can hope for is proximate justice—an imperfect form of justice that recognizes that some justice is better than no justice at all. As Bethany Jenkins has said, “We pursue proximate justice in this age even as we recognize that true justice—the kind of justice that brings the dead back to life—will ultimately come in the age to come. Our longings for justice will only finally be fulfilled in the new heaven and the new earth.”
A consistent pro-life position can maintain that a woman who has an abortion may be morally culpable in the taking of an innocent life, and yet still recognize that in the interest of compassion and proximate justice (e.g., ensuring the conviction of abortionists) she should be treated solely as a second victim and not as a first accomplice.
Catholic commentator Trent Horn says this about allowing for some leniency for women who may not fully always know what they are getting themselves into:
Punishments for crimes are complex matters, but protecting the innocent is simple, and the unborn should simply be protected under the law. Punishments for crimes are not uniform because they are based on the killer’s intent and the circumstances involved and not just on the kind of crime committed. Not every homicide is considered first-degree murder, and punishment for homicide can vary from the death penalty to probation.
For many women, abortion has been legal for their entire lives, and in the United States there are no public education campaigns to discourage them from having an abortion (unlike for other harmful things such as smoking). Professional medical organizations endorse abortion, and many women choose abortion when their partner, family, or health-care provider suggests or imposes it upon them. Finally, most women do not intend to kill their child through abortion. They just don’t want to be pregnant. They may even think abortion is a form of surgical contraception that keeps a potential person from becoming an actual baby.
He goes on to say this:
Infanticide is considered less serious than first-degree murder, because the perpetrators of that crime are usually a danger only to their own offspring and are often under extreme emotional stress. Punishments for infanticide can be as light as one to two years’ imprisonment, or even probation. If abortion were made illegal, “feticide” laws could be enacted that mirror current infanticide laws in language and range of punishments. That way, women who chose abortion, as well as the men who cooperate and the doctors who perform the procedure, would be appropriately punished based on each person’s level of moral responsibility.
Again, what exact crime one can be charged with here, and what exact punishment is warranted is not only a matter of debate, but something for the various courts to decide. Let me offer one way forward which a number of prolife leaders, such as Scott Klusendorf, have strongly favoured. I refer to criminology professor Mike Adams and his 2013 book, Letters to a Young Progressive.
Letter 11 is about “Punishing Abortion.” In it he speaks about a “meeting of the minds” in this debate: did the women fully understand all that the abortionist intended? Abortionists know exactly what they are doing, but do the women? Not always, so we can’t always prosecute the woman in the same way as we prosecute the doctor.
He says there should be “harsh punishment for abortion doctors and a lesser punishment for women who have abortions.” He goes on to make the legal case why prosecuting the abortionist is relatively easy to do: “Abortion is premeditated murder. In order to convict someone of murder in the first degree, however, the prosecutors must prove more than just premeditation. They must also prove wilfulness and deliberation. Finally, they must prove that the defendant’s actions were the proximate cause of death.”
He discusses these four elements in detail and then goes on to say: “Sustaining a first-degree murder charge against a woman who gets an abortion would be more difficult. She does not perform the procedure so there is, for her, no direct action that results in the death of the baby. In other words, she does not actually commit the offence.”
He then examines the issue of a “criminal conspiracy”. He says this requires a “meeting of the minds”. He says that
the woman rarely knows what the doctor knows – namely, that the abortion stops a beating heart and kills a clearly living and obviously human entity. For these reasons, prosecutors would be reticent to charge the patient under a conspiracy theory, and the jury would be unlikely to convict if such a charge came before them. Still, seeking an abortion would clearly be solicitation of a criminal act – a much lesser charge than conspiracy to commit first-degree murder.
He concludes with this recommendation: the doctor should get a murder prosecution following an abortion while the patient should get a criminal solicitation prosecution. This may be a sort of middle way that seeks to both meet the demands of justice while showing that we also care about the women, while not excusing her behaviour and choices.
Much more can and should be discussed on this. Part of this issue is what are we going to target: supply or demand? Here many favour targeting the supplier (the abortionists, etc) instead of demand (those who want an abortion). But consider related ethical and legal hot potatoes.
In the prostitution debate, current Swedish policy is often held up as a way forward. There the demand side (the customer) is targeted, but supply is not (the prostitutes). Pimps and traffickers however are also targeted. To my way of thinking, this unnecessarily lets the prostitutes completely off the hook (although again coercion and force is often behind what they do – but certainly not always).
In the debate over drugs, policy tends to target both: the suppliers (drug dealers) as well as the demanders (drug users) can be charged. There we seem to think that both parties are at fault, and both must be held responsible for what they do, although the pusher tends to be more strongly targeted.
In sum, not all prolifers may be happy with the position I am taking here. Some want the book thrown at women who abort. While I can see where they are coming from, I beg to differ. I think some charges can be laid, but the main focus should be on the abortion providers.
But in a fallen world no public policy or legal solution will be perfect, and we can and will have to agree to disagree in many of these areas.