Should Women Face Murder Charges for Abortion? If You’re Pro-Life, The Answer is Yes.

Jeff Durbin, an influential pro-life advocate who holds that women should face the death penalty if they have abortions.

“If pro-lifers got their way, a teenager who used abortion pills to end her pregnancy after a rape would face greater punishment than her rapist!”

This statement has spread rapidly through pro-choice groups; it is typically used to galvanize pro-choice people by suggesting pro-life ethics lead to obviously monstrous moral conclusions. In response, many mainstream pro-life organizations have argued that any form of punishment for a woman who acquires an abortion is actually against pro-life moral framework.

A few radical pro-life groups, however, have doubled down on the notion that women who end their pregnancies ought to face legal consequences. Influential pro-life advocates like James White and Apologia Studios, for instance, argue that mainstream pro-life groups that oppose punishment for women are selling out their principles as a way to appeal to the mainstream. More mainstream pro-life advocates have responded by suggesting that these more radical organizations should just stay quiet, lest they disturb and offend mainstream Americans with their views.

I will preface this piece by stating that I am strongly pro-choice and do not find the pro-life moral framework plausible. But I will argue here that if you do accept the pro-life framework, the views of Jeff Durbin, James White, and other “radical” pro-life activists are the logically consistent ones. In other words, the idea that the raped teenager who aborts her pregnancy should face greater punishment than her rapist is not implausible at all – it’s the logical, and indeed obvious, consequence of embracing essential pro-life principles. (Rape is punished far less than murder in our culture.) Indeed, Durbin and White are correct to point out the hypocrisy of moderate pro-life groups who claim to be motivated by logic and science but attempt to silence or diminish them.

To understand this, I will first look at the reasoning given by the moderate pro-life organizations for why women should not be prosecuted. Secondly, I will show how their reasoning fails, and why their position that abortion providers should be prosecuted but not women is contradictory. Finally, I will consider the implications of this analysis for feminists in a post-Roe America.

The Moderate Pro-Life Position – Legal Consequences for Abortion Providers, Not for Women

The standard pro-life position, embraced by groups as wide-ranging as the Republican party and Secular Pro-Life, is that in a pro-life America only abortion providers would be punished when women get abortions; women would not face legal consequences. The National Right to Life Committee released the following statement:

As national and state pro-life organizations, representing tens of millions of pro-life men, women, and children across the country, let us be clear: We state unequivocally that we do not support any measure seeking to criminalize or punish women and we stand firmly opposed to include such penalties in legislation.

An Open Letter to State Lawmakers, NRLC

As many perplexed “radical” pro-life advocates point out, this position seems immediately bizarre. If you go online and buy a gun illegally and use it to murder your partner, you would be held responsible for the murder, and not the seller of the weapon. Certainly, the person who sold you the gun illegally may face legal consequences, but these legal consequences would not be for the murder but for improperly selling a controlled substance. If you hired a hitman to kill your child, the hitman would likely face legal consequences as well, but you would hardly be allowed to escape consequence while the hitman faces all the legal repercussions.

Moderate pro-life organizations justify their position with the following rationalizations, however.

Rationalization One: Many women don’t understand that the fetus is a person with a right to life, even in places where abortion is prohibited.

According to groups like Secular Pro-Life, women have been brainwashed by pro-choice groups into thinking that a fetus is not a person. Additionally, early term fetuses, which are killed in the vast majority of abortions, are not cute and cuddly like babies; women, therefore, may be prone to “dehumanizing” these fetuses. In short, this rationalization suggests that many women hold beliefs that it is OK to kill fetuses in certain situations, and therefore it’s inappropriate to hold women accountable for actually killing those fetuses in places where abortion is illegal.

But this reasoning fails when we apply it to similar cases uncontroversially believed to represent murder. Let us look at the tragic case of Tina Isa:

Tina Isa was murdered in an honor killing by her father, who believed he was justified in killing her because she had brought shame on his family.

Tina Isa was the daughter of a highly traditional Muslim father, Zein Isa. Zein Isa grew up in a very traditional Arab community; in that world, killing women who brought shame upon their family was not considered to be a necessarily wrong or evil act. By all accounts Zein did not integrate well when he and his family immigrated to America.

When Tina Isa began dating a Black American boyfriend, Zein felt she had disgraced his family sufficiently to warrant deadly punishment. He murdered Tina when she returned home from her day job working at Wendy’s.

Now despite immigrating to America, Zein clearly held on to many beliefs from his traditional past, where honor killings of a daughter would not be seen as unjustified murder. Yet the fact that he held these terrible beliefs does not seem sufficient to exonerate him from his crime. At most, one might say that his background should be a mitigating factor when he was sentenced for his crime. But arguing that men who commit honor killings should be protected from murder charges because of the belief system they grew up in seems hardly compelling.

Likewise, the fact that many women don’t believe that abortion is truly wrong does not seem like a compelling reason to believe they should not face punishment in places where “abortion is murder” is uncontroversial law.

Finally, if beliefs such as these protect women from prosecution, it seems logical they should also protect abortion providers from prosecution. Abortion providers are likely (perhaps more likely) to hold strongly pro-choice views, just like the women who seek abortions. Why would holding those beliefs protect women but not abortion providers?

Rationalization Two: Women Who Seek Abortions Face Financial, Emotional Difficulties, So They Shouldn’t be Charged

Moderate pro-life groups often say women should have immunity from murder charges because women who seek abortions often do so out of severe financial, emotional, or related stress. At the same time, those pro-life groups wish to deny abortions to those women, as they consider abortions for any other reason than the life of the mother to be abortions out of “convenience”.

Does “convenience” justify dropping murder charges in other cases? In 2018, Christopher Lee Watts murdered his wife and daughters. He did so in part because he was having an affair, and because he believed that divorce would be financially ruinous, as well as ruinous to his reputation and social life (Watts’ wife was pregnant when he was having the affair). Watts could plausibly be said to have murdered his wife out of convenience; he would have faced serious financial and emotional stress if news of the affair came out and his wife sought a divorce. Should he have had charges against him dropped, or even lessened? Certainly not. If abortion is the wrongful killing of a child, it is hard to understand why “convenience” would matter so greatly here, but not in other straightforwardly terrible crimes.

Rationalization Three: Women who kill their children are often found not guilty by reason of insanity, so they shouldn’t be charged at all for killing the fetus in abortion.

Perhaps the strangest justification for not treating abortion as murder is this one.

Even when a parent commits infanticide—where it’s blatantly obvious to everyone that a little human has been killed—external pressures can mitigate the repercussions. A high proportion of infanticide cases in the U.S. result in NGRI verdicts (Not Guilty by Reason of Insanity), and it’s unclear how many of these verdicts are based on the actual legal definition of insanity rather than juror conceptions of the term.

Why penalties for illegal abortion should not focus on the woman, Monica Snyder

Certainly, many women who kill their children are found not guilty for reasons of insanity. But others are found guilty, and more relevantly, they are still charged with a crime in the first place. If abortion is the murder of a child, and murdering child generally results in legal charges/prosecution, the logical conclusion would seem to be that women who abort should be charged with murder. Mitigating circumstances might mean they are found not guilty. But the legal system would still charge these women with murder; the women’s defense team would have to show that these mitigating circumstances mean the murder charge should be dropped.

Rationalization Four: It’s Politically Unpopular to Prosecute Women for Abortion, so it shouldn’t be policy.

Some pro-life activists use an argument from pragmatism for not prosecuting women. Prosecuting women would be politically unpopular, so it shouldn’t be a pro-life goal, at least until other pro-life victories are assured.

This idea falls flat for two reasons. One, the pro-life movement often does advocate for policies that are incredibly unpopular – no rape exceptions, for example. Despite the fact rape exceptions are politically popular, pro-lifers resist them because they argue rape exceptions are inconsistent with their ethical framework.

Second, the fact “treating abortion as murder” may be politically impractical now does not give reason to think it should never be implemented. Many pro-life advocates admit that some of their goals (fetal personhood from conception, for instance) are politically unlikely or even untenable, yet they still freely admit that this is the ideal goal. Why would prosecutions for abortion be considered differently?

Further, if this is the reason for opposition to prosecution of abortions, pro-life people should be honest about that instead of pretending they have a moral objection to the practice.

Conclusion

It is not surprising that radical pro-life activists feel frustration around the subject of women being charged with murder if they get an abortion. The rationalizations for not doing so seem ad hoc and weak, and they seem inconsistent with views that abortion providers, by contrast, should be charged.

Importantly, though, the mainstream pro-life opposition to charging women who get abortions with murder adds credence to the feminist belief that anti-abortion activism is not primarily motivated by the view that abortion is murder, but rather by the view that sexually active women ought not reject motherhood. If what the pro-life community wants is for women to have children, it makes sense that they would primarily target abortion providers rather than the women who seek or undergo abortions. Locking up women who attempt or procure abortions – a sizable percentage of the fertile female population – would, by contrast, inhibit the goal of enforcing motherhood on those women.

Indeed, in countries like El Salvador, where abortion is a crime punishable by decades in prison, enforcement of such law is generally infrequent. Occasionally, poor Indigenous women are prosecuted and jailed for decades; the fates of those women seem to serve primarily as a warning to other women considering an illegal abortion. And in America too, poor Black, Indigenous, and Hispanic women are sometimes specifically targeted by law enforcement if authorities believe they may have induced a miscarriage.

Fortunately, however, America is far more sensitive to unequal enforcement of law than those other countries. In a world without Roe, pro-life advocates face a difficult position. If they embrace the logically consistent conclusion and treat abortion as murder, they will have to prosecute women equally, arresting and imprisoning thousands of women; occasionally targeting poor women of color to set an “example” is untenable. If they continue to advocate against prosecuting women, they will likely face a major split in the movement, and they will open themselves up to critiques from the pro-choice movement that they do not really see abortion as murder.

For any pro-life people who may be reading, I ask you to consider more deeply the implications of an opposition to charging women who abort with murder. If you intuitively that prosecuting women who get abortions is immoral – barbaric, even – perhaps the framework that would seem to justify that conclusion is seriously flawed.

Published by KS

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