The pro-life movement has experienced a lot of positive momentum this last year, and preborn life is now protected from conception in a handful of states. As we celebrate each life saved, it is important to remind ourselves why the misguided belief that women should also be prosecuted for the crime of abortion is unwise and contrary to the goals of the movement. The decision to not prosecute women is based on longstanding history and the understanding that prosecution will not ameliorate the harms that led to the abortion.
The American Legal Tradition Shows Women Were Not Prosecuted for Abortion
Historically, women were considered the “second victim” of abortion under the law. Many states explicitly stated such, and many more explicitly stated the woman could not be an accomplice to her abortion. Pregnant women were even excluded from prosecution of abortion in states that statutorily allowed for charging the woman (Joseph W. Dellapenna, Dispelling the Myths of Abortion History, 2006). Abortionists were the sole target of the prosecution. This policy was meant to bring enforcement against abortionists and prevent these abortionists from forcing the woman to appear in court and silencing her from testifying. As the Minnesota Supreme Court stated,
While it may seem illogical to hold that a pregnant woman who solicits the commission of an abortion and willingly submits to its commission upon her own person is not an accomplice in the commission of the crime, yet many courts in the United States have adopted this rule, asserting that public policy demands its application and that its exception from the general rule is justified by the wisdom of experience.
State v. Pearce, 56 Minn. 226, 231 57 N.W. 652, 653 (1984).
Even pro-abortion historian Leslie Reagan pointed out in her book, When Abortion Was a Crime, that states did not prosecute women for their abortions and women did not face criminal liability because the purpose of the law was to protect women rather than degrade them.
Penalizing Women Neither Stops the Cause of Abortion, Nor Ameliorates the Harms Surrounding It
Abortion is at the center of many acts of violence and coercion against the mother seeking the abortion. Partners, parents, coaches, teachers, and abusers are just a few of the individuals that may place pressure on her. The fear instilled in her from threats of abandonment, disowning, homelessness, or abuse may also control her decision. Further pressure is compounded by media messaging that it will be impossible for her to be a good mother and abortion will be her easy way out. Sometimes, the lack of informed consent influences her decision, including being told the fetus is not a human baby. To say that abortion causes devastating damage to women physically, psychologically, and spiritually is an understatement, and punishing a woman for her abortion does not heal the damage done; in fact, the practice would only exacerbate her suffering.
Prosecuting women for abortion could raise the rate of intimate partner violence and reproductive control, and punish the victims of involuntary or coerced abortions. When a woman seeks an abortion, she is nearly three times more likely to experience intimate partner violence than her counterpart that continues her pregnancy (Comm. on Health Care for Underserved Women, Reproductive and Sexual Coercion, Comm. Op. No. 554, at 2 reaffirmed 2022).
Up to one-fourth of women of reproductive age seeking sexual or reproductive health services report having suffered reproductive control (Sam Rowlands & Susan Walker, Reproductive Control by Others: Means, Perpetrators and Effects, 45 BMJ Sexual & Reprod. Health 61, 62, 2019). Vulnerable groups to reproductive control include African American and multiracial women and young women. Many women are coerced to have an involuntary abortion, particularly victims in sex trafficking and women experiencing sexual violence.
Punishing the woman can not only further patterns of abuse, but also discourage a culture that is life-affirming. The path forward is to continue building a culture that is truly pro-life, protecting all humans, including the tiniest and youngest of the preborn. To do so, it is crucial to encourage support for women to succeed and provide a community spirit in which they may raise their children. Pro-Life leaders do not support the prosecution of women. Prosecuting women for their abortions does a grave disservice to the vision for a pro-life future.
