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Should We Punish Women Who Have Abortions? 1

Editors note: The following is a response penned by Hadley, Brian, and Jay to a comment we received from a DR Radio listener about why it would be wrong to punish women for having an abortion, as Donald Trump suggested and later walked back. We’ve seen similar questions and, since we mentioned it on our show recently, we thought it deserved some long-form treatment for clarification and charity. 

Thank you for your support of Dead Reckoning Radio. We are so glad to have you as a listener, and we are glad you brought up these important questions.

There are several reasons that the traditional pro-life perspective does not include punishment for women who are seeking abortions.

First, laws seek to punish those who act criminally. The abortionist is the primary actor. He/she is the one dismembering the body of the unborn; he is committing a sin and a crime (two different things). Did you know that even the original Hippocratic Oath included a vow not to perform abortions? The Oath has sadly since been modified.

Second, we believe the woman receiving an abortion should be viewed as a victim. She is the object of the action (along with her child), even if she paid for the service or sought it out. Our laws have always treated women as victims of abortion, and although our culture tries to deny it, abortion often has significant negative effects on women’s health and wellbeing.

We do not know of any criminal charges that can be brought against women now for unintentionally harming their unborn children, although some states have laws that punish other actors for taking an unborn life (which is consistent with our view).

That leaves the question of intentionality. Practically speaking, it can be very difficult to parse out the motivations of women seeking abortions: Are they doing so out of their own free will? The will of their partner? Pressure from parents? Surely, we can recognize that a woman with an unwanted pregnancy can find herself in desperate circumstances, and while this is no excuse for her sin, it should affect the way we shape related criminal laws. In fact, biblical law in the Bible routinely crafts criminal sanctions around questions of agency and intentionality—e.g., murder v. manslaughter, premeditation v. heat of anger, etc.

So, even if we someday had the perfectly just legal system, the State would be required to demonstrate knowledge and intent. Given that the abortion issue has been clouded by lies for a generation (it’s a “fetus,” “clump of cells,” etc.), it seems dubious that one could prove a premeditated state of mind “beyond a reasonable doubt.” Even if we theoretically know she knows, that has to be established by evidence and witnesses to a high standard of proof. Which is to say, when it comes to a highly complicated issue like abortion and its motivations, resources are far better spent on the criminal actor who cannot feign ignorance: the abortionist.

We like your drug-market analogy, but like most analogies, it is imperfect. There is no perfect analogy to abortion; it is unique and in some ways exceptional. Even then, criminal punishments for people who sell drugs are far greater than the punishments people face for simply possessing or using drugs. So then sometimes people ask, could women seeking abortion be treated as accomplices? Maybe so, but see the previous paragraph for practical problems with that approach.

We want the public policy that best deters abortion. We (like you!) believe that abortion is a matter of life and death; each abortion that doesn’t take place results in a life saved. If a woman knows she will not face any criminal charges, she may be more likely to report her abortion and aid law enforcement in the conviction of abortionists. If a woman will be charged as an accomplice, she cannot testify against her the abortionist, making it harder to obtain a conviction.

Would that all of Donald Trump’s comments would yield such an interesting discussion of a public policy topic!

Thanks again for listening – please continue to engage with us!

Hadley, Brian, and Jay

P.S. We found these blog posts helpful in further clarifying the issue:

Why Don’t We Punish Women Who Have Abortions

Why the States Did Not Prosecute Women for Abortions Before Roe V. Wade