We do not believe that women should be prosecuted for abortion, because the state of public thought about abortion precludes us from assuming women understand what they are doing in an abortion.
Estimated reading time: 7 minutes
One of the most important principles of criminal law is mens rea, the idea that you need to understand that you are doing something wrong or harmful in order to have committed a crime. This can have different levels; murder requires a conscious choice to kill another person intentionally, while criminal negligence requires only that a reasonable person should have known that harm would occur.
In America, women have been told for 50 years, by the government, mass media, schools, and culture, that abortion is a human right that harms no one. Pro-choice advocates have assured them that the fetus is a non-person, calling it a “parasite”, a “clump of cells,” or at best a “potential person.” While pro-life advocates have done our best to educate the public, we aren’t in a place where we can assume that any reasonable individual will understand that abortion unjustly kills a human person. It is, after all, reasonable under normal circumstances to believe that your friends, family, professors, journalists, and politicians aren’t all misleading you. It will take many years to undo the misinformation, propaganda, and deception of the last 50 years.
And so, while a minority of women might have full moral culpability for abortion which could ground mens rea, most women don’t. It makes no sense to advocate for prosecution when only a tiny minority could be found guilty, and the rest would be unjustly dragged through our criminal justice system.
This should not be taken to affirm that abortion itself is not serious or criminal, nor that the abortion practitioner should not be found criminally liable for murder. After all, the abortion practitioner ought to know better than anyone else the nature of the human he is brutally killing. The abortion practitioner intentionally and consciously kills a human he knows is alive; he has no excuse before the law.
Q: Pro-lifers who don’t want to prosecute women for abortions are being “inconsistent.” If the unborn are really equivalent to infants or toddlers, then you should be prosecuting women for killing them just like you’d prosecute a woman for killing her toddler. If you’re not doing that, then you’re admitting that fetuses aren’t human persons after all.
A: If we lived in a world where, for the past 50 years, law and culture both firmly believed that toddlers weren’t people, there was widespread ignorance about the biology of toddlers and their status as persons, and anyone could take their toddler to a medical clinic to be euthanized, and then suddenly that practice became illegal, we would be recommending the exact same policy. We would be working to change the culture by engaging in peaceful protest, meaningful conversations, and government policy changes to create a world where everyone does understand that toddlers are people and killing them is wrong. We would seek to make killing toddlers extremely difficult to do by both outlawing the procedure, closing down the clinics where toddlers are killed, and prosecuting the individuals who are performing the killing of toddlers.
50 years of misinformation and deception about abortion makes abortion an entirely different scenario than any other type of killing performed today. Abortion cannot be compared perfectly to the murder of a toddler today because, while the two human persons being killed are equivalent in value, the other circumstances are not. We should treat abortion the same way we’d treat the killing of toddlers in an alternative reality where 50 years of damage had created a culture completely convinced that killing toddlers was a “human right.” Our position is incredibly consistent.
Q: If you purchase a gun online and use it to kill someone, you’re the one who should be held responsible, not the place you purchased the gun from. If you hire a hitman to kill someone, you and the hitman should be held responsible. So if abortion is killing someone, too, then companies who provide abortion pills shouldn’t be held legally responsible, but both women and abortion practitioners should.
A: Mens rea is again important here. If a child incapable of criminal culpability was given a gun by his parent and shoots someone, the parent who provided the gun would be the one held legally responsible. If you hire a doctor to do what you genuinely believe is removing a mole, but what that doctor actually does is kill someone and they knew they were deceiving you all along, the doctor should be the one held legally responsible. This is much more analogous to what is occuring in an abortion; the company who provides abortion pills know exactly what that pill does, and they are actively deceiving women into believeing that the pill does not kill a human being while knowing that their product will be used to kill someone every time it is sold.
Both analogies involving the purchase of guns also assume that the purchasing of a gun is legal, and therefore it is how you use said gun the only thing that matters. When abortion is illegal, which is a necessary condition of discussing the prosecution of abortion in the first place, that automatically makes it a disanalogy to gun sales, and there is significant legal precedent for prosecuting those who peddle illegal goods rather than those who purchase them in an attempt to more effectively shut down the industry.
In addition, the assertion that companies who provide dangerous goods shouldn’t be held legally responsible directly contradicts our treatment of the opioid crisis. Teva Pharmaceuticals was the first manufacturer found liable for contributing to the opioid epidemic for making and pushing opioids, even though they neither prescribed nor took the drugs. This led to companies such as Purdue Pharma paying multi-billion dollar settlements to avoid further lawsuits.
Q: I agree that moral culpability is incredibly important here, which is exactly why we need to prosecute women. Different women have different levels of culpability, and that is what our justice system deals with all the time for other types of crimes. The truly nuanced position that treats moral culpability well would be one that prosecutes woman in order to examine whether or not she had mens rea at the time of her abortion. Saying that no women should be prosecuted is inherently lacking the nuance of moral culpability.
A: This ignores the very real cost of being charged with something and put into the criminal justice system, even if you’re innocent. Our premise is that the vast majority of women lack criminal culpability, so this view suggests charging a lot of women who would be found not guilty in order to prosecute a few who would be found guilty.
Let’s walk through what would happen to the woman who lacks culpability in this situation. She is charged with a crime, handcuffed, and taken to the county jail in a police car, where she’ll be offered a public defender (hopefully she has her own attorney). Best-case scenario, she’s released on her own recognizance (otherwise she has to pay bail, likely involving paying money to a bondsman that she’ll never get back, for the privilege of not awaiting trial in jail). Her name and charge are published in the local police report, earning public shame. She is required to appear at the courthouse for pre-trial hearings at times selected by the judge; so much the worse for her if it’s during her work day and she doesn’t have paid time off. Maybe she gets lucky and the charge is dismissed pre-trial; otherwise, after a large delay, she’ll get to sit in a courtroom and stand trial over the course of one or more days and hope that the justice system gives the right answer in her case (it doesn’t always, you know).
So, what’s the point of putting the 80-plus percent of women who would be charged through that ordeal, just to sift through them to find the few for whom you could establish culpability in a court of law? Is that an acceptable cost to have the feeling of ideological purity? We don’t trot innocent people through the justice system just to find the one person with criminal culpability.
Aside from that, the flood of unnecessary cases would put a strain on the criminal justice system, which we already don’t necessarily trust to handle cases well. Furthermore, women who are pressured or coerced into an abortion would now need to testify to try to establish that as a legal defense from prosecution. This will lead to “he said, she said” scenarios in which the prosecutor will trot out a manipulative family member or abusive boyfriend in the room to deny everything, and it will often require the woman to testify in front of the person who already exercised enough power over her to coerce her in the first place.
The post ERI Statement: Should Women Be Prosecuted for Illegal Abortions? originally appeared at the Equal Rights Institute blog. Subscribe to our email list with the form below and get a FREE gift. Click here to learn more about our pro-life apologetics course, “Equipped for Life: A Fresh Approach to Conversations About Abortion.”