Why “punish” abortionists but not those who receive abortions?

Yesterday, Donald Trump said in an interview that the law should “punish” women for getting abortions (see above). Trump quickly reversed himself in a subsequent press release. Still, in his initial remarks, Trump was able to accomplish a trifecta of political travesties.

First, he projected a caricature regularly perpetrated by pro-abortion people against pro-lifers—that we care only for babies and not for their mothers. Second, while arguing for the pro-life position, he misrepresented what pro-lifers actually believe and alienated viewers from our cause. Third, Trump has put pro-lifers in a defensive position rather than strengthening the cause. All this while he was supposedly trying to help the cause! With “friends” like this, who needs enemies?

Trump’s remarks were so absurd that he unified both pro-life and pro-choice groups in their condemnation. He also proved that he has no idea what he is talking about, that he has hardly even considered what the pro-life cause is all about, and that he can’t be trusted to carry the torch for the sanctity of human life. He just doesn’t get it.

But now Trump has made a non-issue an issue, so we have to state the longstanding pro-life view again. Pro-lifers believe that it should be illegal to perform abortions. Thus we favor policies that punish those who perform abortions, not the mothers who allow them. Why? The answer has both a moral and legal dimension.

1. Morally, it is not always clear what level of culpability should be assigned to the mother. That is not to say that she has no moral culpability in the act. She certainly does. It is to say that it is not always clear to what degree she is morally implicated in the act. Scott Klusendorf wrote briefly yesterday to explain why this is not always clear:

I’ve been asked several times today to comment on Trump’s statement about prosecuting women who have abortions. Due to time constraints, I will reply here.

Suppose unborn humans are once again protected in law. What’s wrong with a law that says you can’t intentionally kill innocent human beings and if you do, there will be consequences?

But as to what those consequences should be in this case hinges not only on the circumstances of the act (who can possibly say what the consequences should be until all the relevant facts are known?), as it does on all homicide cases, but also on whether there’s been what Criminology Professor Mike S. Adams calls a “meeting of the minds.” That is to say, did the woman contracting the abortion have the same understanding of the act and same proximity to it as the abortionist? I think most agree that the abortionist knows exactly what he’s doing while the aborting mother may not fully understand. For example, the abortionist assembles the instruments used to dismember the fetus and often views the child on an ultrasound machine during the dismemberment procedure. He uses a doppler devise, inaudible to the patient, to detect crushing fetal heartbeat. (See abortionist Warren Hern’s book, “Abortion Practice.”) His acts are clearly premeditated. True, the mother and the abortionist have a meeting of the minds in that they agree on having the abortion, but they rarely meet beyond that point because the mother rarely knows what the abortionist knows.

In other words, in these kinds of cases, it’s very difficult to prove that there’s been a meeting of the minds in a court of law. Thus, pro-life lawmakers have traditionally chosen to focus on stopping the killing by proposing harsher penalties for the abortionist than for the mother. Admittedly, one could still argue that, strictly speaking, proposing a lesser penalty for one party is inconsistent. But isn’t that true of many homicide cases? We’ve all heard of cases where a mother kills her newborn or toddler and gets no jail time whatsoever. (See, for example, “Judge shows mercy on mother with post-natal depression who killed her baby as he spares her jail,” Daily Mail, Nov. 12, 2013.)

But again, even if pro-lifers are inconsistent on the issue of consequences, how would that in anyway prove the unborn are not human or that intentionally killing them is justified? At best, it proves individual pro-lifers are failing to consistently apply their ethic, not that they’ve failed to make a case for the humanity of the unborn and the inhumanity of abortion. Thus, the alleged inconsistency of pro-lifers is no help to the abortion-choice argument.

Klussendorf’s argument is also reflected in biblical ethics. The Old Testament law treats the killing of innocents as a transgression. But it also recognizes a sliding scale of culpability based on one’s intentionality in the act. The difference between manslaughter and first degree murder is not a distinction without a difference (see Numbers 35). For more on this, read here.

To be clear, the humanity of the unborn is not in question. What is in question is the mother’s intentionality in the act. In his book Defending Life, Francis Beckwith puts a finer point on it:

If abortion is made illegal… [those crafting laws and penalties] will have to take into consideration the following facts. (1) Unborn human beings are full-fledged members of the human community and to kill them with no justification is unjustified homicide. (2) Because of a general lack of understanding of the true nature of the unborn child – likely due to decades of cultural saturation by abortion-choice rhetoric and little serious philosophical reflection on the pro-life position by the general public – most citizens who procure abortions do so out of well-meaning ignorance. (3) The woman who will seek and obtain an illegal abortion is really a second victim. Women who seek illegal abortion will probably do so out of desperation. Not realizing at the time of the abortion that the procedure kills a real human being, some of these women suffer from depression and guilt feelings after finding out the true nature of the unborn.

Defending Life (Cambridge University Press, 2007), p. 110

I would add to these observations that while the mother may be ignorant of what she is doing, there is such a thing as culpable ignorance. That means that some people who don’t know better should have known better (Luke 23:34). So yes, she is morally implicated, but it may not always be clear to what degree.

2. Legally, prosecuting the mother can undermine the state’s ability to punish the abortionist. Americans United for Life has a helpful article that you can read on this. I highly recommend that you read the whole thing. But here’s a relevant excerpt:

Why did the states target abortionists and treat women as a victim of the abortionist?

It was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

The irony is that, instead of states prosecuting women, the exact opposite is true. To protect their own hide, it was abortionists (like the cult hero and abortionist Ruth Barnett when Oregon last prosecuted her in 1968), who, when they were prosecuted, sought to haul the women they aborted into court. As a matter of criminal evidentiary law, if the court treated the woman as an accomplice, she could not testify against the abortionist, and the case against the abortionist would be thrown out.

In short, as a matter of policy, prosecuting mothers would likely undermine the ability to prosecute abortionists. There is evidence that this was likely the reason why state laws prohibiting abortion before Roe didn’t seek to punish the mother. James Witherspoon explains:

Often the only testimony which could be secured against the criminal abortionist was that of the woman on whom the abortion was performed; perhaps the woman was granted complete immunity so that she would not be deterred from revealing the crime or from testifying against the abortionist by any risk of incurring criminal liability herself. That the non-incrimination of the woman’s participation was motivated by this practical consideration is indicated by the fact that those states which did incriminate the woman’s participation often enacted statutes granting a woman immunity from prosecution in exchange for her testimony, or providing that this evidence would not be admissible in any criminal prosecution against her.

James Witherspoon, “Reexamining Roe,” St. Mary’s Law Journal 17.29 (1985): 59

For more on this, I recommend Francis Beckwith’s Defending Life (Cambridge University Press, 2007), pp. 108-11.

Does this answer all the moral and legal questions surrounding this issue? No, but it is a start. And it also clarifies that the pro-life movement has never sought to punish women by force of law for getting an abortion. Rather, the focus has been on treating them with care and compassion. Anyone unaware of this history does not understand the pro-life position. And it is clear that Donald Trump falls into that category.

26 Responses to Why “punish” abortionists but not those who receive abortions?

  1. Joseph Spurgeon March 31, 2016 at 5:25 pm #

    Did God hold the parents who sacrificed their children to Molech guilty”? Abortion is murder and will not be abolished until we deal with it as exactly what it is. If you have been to the abortion clinic, you know that these women are rarely victims.

  2. Tyler Easton March 31, 2016 at 6:47 pm #

    So, you’re in favor of encouraging mothers who kill their children to go unpunished? If you just change the word “abortion” to “murder” and “abortionist” to “hitman” in your post, the absurdity of you position becomes evident. In this case, you would have us believe that the person hiring a hitman is not culpable and is, in fact, a victim.

  3. Toby Carrillo March 31, 2016 at 9:29 pm #

    You have to admit that the statements “abortion is murder” and “women who get abortions shouldn’t be prosecuted” seem to be contradictory. So a woman who parks her car in a no-parking zone is more accountable under the law than one who has a 3rd trimester abortion. Here’s the major problem though: If voters consider it “misogynist” to punish abortion-having women with even a fine (let alone prison), what will these same voters say when some of these abortion-having women die from going to unlicensed providers?

  4. Denny Burk March 31, 2016 at 10:11 pm #

    Thanks, everyone, for taking time to comment. I’ve updated the post with material from legal scholars Francis Beckwith and James Witherspoon. Please read above to see how I’ve tried to answer the questions some of you have been asking. Thanks.

  5. Aaron O'Kelley March 31, 2016 at 10:34 pm #

    The Klusendorf quote doesn’t actually argue for no penalty for the woman involved, but simply a lesser penalty than what might be imposed on the abortionist. But it looks like your position is that women should not receive any penalty. Have I misread you there, Denny?

  6. Joseph Frazer March 31, 2016 at 10:42 pm #

    I have to agree with my fellow posters here – this “immunity” language is no good. Secondly, the examples given in the excerpts are living in academia too much. There are too many generalizations and assumptions used as factual evidence.

    In the end, most if not all women are fully aware of the act of abortion. They are not stumbling into the clinic void of any cognitive abilities. They may be emotional or upset, but they are fully aware of the actions they are taking, which leads to intent.

    In this situation that Trump was in, the question was if it was federally illegal, should the woman be punished? So the real question is, if she breaks a federal law, should she get punished? I can’t understand why we would give a pass to breaking federal law when a woman is aware of her actions that it was illegal. Forget that it’s an abortion – it’s a federal law (in this instance) that is being broken. I am pretty sure that’s what Trump’s thinking was – if it’s against the federal law, and both parties broke the law, both should be punished. It’s not that big of a deal that he took the question that way.

    Marijuana is federally illegal. If I get caught with if in my system, the dispensary may or may not be in trouble, but as the person with it in my system, I too will face consequences because it’s against the law, no matter what the dispensary does.

  7. Joseph Randall March 31, 2016 at 11:16 pm #

    I am really baffled by this whole discussion. I cannot believe this is even a question for debate. If you believe the baby is a baby and you believe it is murder to take the baby’s life then the mother is a murderer. That’s just basic Bible, right? And basic Bible is that murderers should be punished. This is youth group Bible study. I cannot believe this debate, honestly. You don’t need to be a Bible scholar or ethical scholar or legal scholar or any other kind of scholar to figure this out.

    This whole discussion is another reason why I don’t believe a lot of people who say they are pro-life really, deep down, truly believe that the fetus is a human baby or that abortion is truly murder.

    Can you imagine having this discussion about mothers who kill their two year olds? But she was just so stressed! She couldn’t handle the pressure of caring for the two year old. Really? OK, but you don’t kill the two year old. And if you do in a society that fears God, you get punished.

    I really cannot believe this debate is taking place.

    Praise God for the grace and mercy of the Lord Jesus Christ Who shed His blood and rose from the grave to save murderers and make them whole again! And though they may have to serve prison time or even give up their lives because of their murdering, they shall be with Christ in paradise! The vilest offender who truly believes, that moment from Jesus a pardon receives!

    Oh Father, give us clarity to get this right! We are messing this all up!

  8. Joseph Randall March 31, 2016 at 11:49 pm #

    A woman hires someone to cut up her own little, helpless, innocent baby into numerous pieces – to chop her head off and cut her arms and legs off or to cut the back of her neck and have her brains sucked out – and we don’t think THAT should be punished by the civil law of the state? Really!

    We have become so desensitized to the horror of abortion, it’s sad. God be merciful to us the sinners! Wake us up oh Lord!

  9. Christiane Smith April 1, 2016 at 2:24 am #

    Hi DENNY,
    When Donald Trump questioned Chris Matthews about his Catholic faith . . . Chris said he accepts the Church’s moral teaching on abortion;
    but then Chris said something interesting, this:
    “I’ve never understood the Pro-life Position”

    and in saying this, Chris draws a contrast between Catholic moral teaching on abortion and the Pro-life Position of some seeking power and control politically.
    Denny, a lot of Catholic people, myself included, understand where Chris is coming from here. . when Chris mentions the ‘render to Caesar/ render to God’ dichotomy, he is pointing out a matter of faith for Catholic people. Catholic people are bound to follow their moral consciences and are answerable to God for their decisions and actions.

    Whereas our American system of constitutional government allows for a legal system capable of punishing those it has justly determined as law-breakers, the Church is offering something very different to those involved in the abortion issue because the Church answers to a higher Power in its mission to those in need of help.

  10. Tyler Easton April 1, 2016 at 4:04 am #

    After modifying your original post you write, “it is not always clear what level of culpability should be assigned to the mother. That is not to say that she has no moral culpability in the act. She certainly does. It is to say that it is not always clear to what degree she is morally implicated in the act.” So your position is a woman who gets an abortion is morally culpable to a degree, but she should not be legally responsible (How is that biblical? That has some interesting implications for the forensic side of justification if we apply your categories to God’s law). Yet you switch categories between moral culpability into legal culpability when you reference Numbers 35 and start talking about manslaughter and first degree murder. At this point, how do you disagree with Trump that “some for punishment” is necessary for the woman who gets an abortion? You are speaking of degree of punishment.

    Your position is a nonsensical bifurcation between morality and legality on a issue that is suppose to be clear cut. Are you really arguing that a woman getting an abortion doesn’t realize that she is murdering her baby as your Klusendorf quote suggests? The whole reason a woman gets an abortion is to get rid of the baby, that much is clear. That is the “meeting of the minds.” That’s not complicated or difficult to understand. You’re allowing political maneuvering and strategy about who to prosecute to determine culpability. It only shows that you are so interested in being anti-Trump that you don’t realize you have been duped by the social justice warriors into thinking that women are always victims. That is the common ground between your position and Bernie/Hillary.

  11. Katy May April 1, 2016 at 6:18 am #

    Hi Denny, I’m pro-choice but I thought you raised some really interesting points in this post, and I appreciate the largely non-inflammatory language. I’m glad that many pro-life people like yourself were also taken aback by Trump’s comments.

    In your observations and the academic excerpts, the degree to which the mother is legally or morally culpable is discussed at length, but at no point do you discuss the legal or moral culpability of the father. The father is usually half responsible (and, in the case of sexual assault, fully responsible) for the creation of the fetus, and often they either jointly decide on an abortion, or in some cases pressure the mother into having one. Do you have a view on the father’s involvement?

    I’d also be interested in hearing the views on this topic from the people who have already commented on this post (although it should be noted that I’m not interested in getting into a pro-live vs pro-choice argument today – just keen on getting some views about whether they think the father should be held responsible too.)

    • Daryl Little April 1, 2016 at 8:21 am #

      Katy, you raise a good point, a point which I think strengthens Denny’s case against holding a mother fully culpable.
      We know that often fathers (and even parents of the mother) will force the mom, or strongly pressure the mom into having an abortion.
      Because of the abusive nature of the relationship that gives rise to that kind of pressure, I would agree that punishing the mother at the same level as the abortionist would tend toward prosecuting the abused and not the abuser.

      Not only that, but since the goal of prosecuting the abortionist would be to eliminate the practice, it would be far more effective to simply prosecute the abortionist anyway.
      Should we ever arrive in a situation where all abortionists have been shut down so that a woman needs to search high and low for someone to kill her child, then we’d be looking at a different scenario, at which point the laws could/should be revisited but for now, given the prevalence of abuse against women, to punish the mother would seem unjust to me.

    • Adiel Corchado April 1, 2016 at 1:32 pm #

      I believe that everyone involved in the murder of the child, including the friend who knowingly drove the woman to get the abortion, should be held responsible for murder and punished accordingly. Of course this includes the father of the child if he played any part in the mother killing him or her. The only time the woman should not be held responsible is if she isn’t responsible i.e. she was physically forced or somehow deceived into doing it. For example, say it’s a 13 yo girl who got pregnant and the parents put her in a car and take her to get an abortion and she has no say in the matter nor does she understand what’s going on. In a case like this the abortion is something done to her outside of her will and she is indeed also a victim along with the baby. In the case her parents should be held responsible for murdering their grandchild.

    • Gus Nelson April 1, 2016 at 10:42 pm #

      Katy: Legally fathers can’t be held responsible because the Supreme Court has ruled in Danforth v. Connecticut that a father can’t stop an abortion. It arises from the notion the woman is more directly affected by the pregnancy and, therefore, gets the final word. Thus, she is, legally, the only one who can consent. Since the father has no right to stop the abortion and his consent is unnecessary, he can’t be held legally liable.

  12. Toby Carrillo April 1, 2016 at 8:19 am #

    Besides the obvious legal contradictions others have pointed out in ‘no prosecution for abortion-having women’, there’s also a massive practical problem: women won’t need an abortionist to have an abortion. In our current mindset, if a woman wants an abortion, she needs to visit a Planned Parenthood and go through surgery.
    However, with the rise of chemical abortion drugs, abortions of the future might be something that are usually done outside a doctor’s office, where a woman takes the pill herself that she orders in the mail. Getting an abortion would be as simple as ordering the pill on an iphone app.

  13. Carole M April 1, 2016 at 8:58 am #

    What I cannot get past is the fact that Trumps remarks were in response to Matthews hypothetical gotcha scenario in which abortion would have to be illegal! It isn’t, so why even go there!? Why dump on Trump – I’m no fan, by the way – when he was blind sided to begin with, and then non-stop harassed rather than allowed to give a thoughtful answer? The real villain here is interviewers like Matthews who in pit bull manner are simply out to damage the anti-abortion stance in any way possible. Unless I am seriously mis-informed, the pro-life movement doesn’t want to punish anyone….but to stop this heinous act of killing children! This involves changing hearts and minds and the law! The “punishment” scenario is the liberal left’s twisted view of it which they wield as a weapon. But it has no basis in truth, just like all of the other “hater” accusations they throw at anyone who disagrees with them. Why no outcry against them?!

  14. Adam Omelianchuk April 1, 2016 at 4:59 pm #

    There is a contradiction between naming abortion as ‘murder’ and punishing only the abortionists only if there is no other function of punishment than the retributive “eye for an eye” variety. But why assume that? There are other functions of punishment, namely deterrence. Punishing women for abortion has been tried and found wanting (see the history of this practice in the 18th and 19th century). Why? Because it did not deter the practice. The goal of the pro-life movement, however, is just that: to deter the practice. Therefore, and not without some irony, those who call for the punishment of women for abortion act contrary to goals of the pro-life movement, which has always been about helping both women and the babies, and not just the babies.

    • buddyglass April 1, 2016 at 11:04 pm #

      Was about to make the same point. Glad you made it first. Another point is that to the extent we insist on treating aborting one’s pregnancy as a capital crime the less likely it is for the provision of abortion to ever be criminalized at all. Also, punishing mothers likely lessens the deterrent to providers since it complicates the task of convicting them.

    • Ezra Thomas April 2, 2016 at 7:01 pm #

      It’s either murder or it isn’t. A mother who skips the visit to the abortionist and takes a life by her own means is guilty of murder, right? The abortion clinic is simply the tool for the job. Women mostly always have agency regarding their abortions in the US.

      Trump is simply not educated enough on the issues to know how to properly lie about this, unlike the other pro-life candidates.

  15. Adiel Corchado April 4, 2016 at 9:41 am #

    I have a friend who lives in Argentina where abortion is illegal. I thought it would be interesting to find out what their legal code says. This is the relevant portion:

    ARTICLE 88. – the woman who causes her own abortion or consents that another person cause it shall be punished with imprisonment of one to four years. The failed attempt of the woman is not punishable.

    Another thing I found interesting is that my friend, who’s an atheist who loves to debate against Christians, was shocked at our pro-abortion laws which allow women to have abortions at any point for any reason or no reason at all. He had no problem with the idea of the woman being punished along with the abortionist.

  16. steve hays April 4, 2016 at 2:16 pm #

    A number of commenters are missing the point. In principle, wrongdoers ought to be punished. However, given the current political climate, we can barely get restrictions on abortion enacted into law. There aren’t the votes to pass laws to penalize women who have abortions. Even if such a law were passed (which isn’t in the cards), it would then depend on DA’s to prosecute women under that law, which isn’t going to happen given the current political climate. And even if women were charged, how many juries are going to convict her of the crime, given the state of the popular culture? Remember, it only takes one vote to acquit.

    The strategy we need to pursue is to prevent as many abortions as possible. In cases where prevention and punishment are competing values, you must prioritize. Saving babies is more important than retribution.

    And keep in mind that no one ultimately eludes divine justice. That’s what the day of judgment is all about.

  17. David Dunbar April 7, 2016 at 3:05 pm #

    I agree with most of the comments so far. A large majority of these women aren’t coerced or forced — they are violent haters of the child within. They hire trained killers to rid them of their burden so that they can better enjoy life.

    I don’t buy the “prosecuting the women will hinder prosecution of the ‘doctor'” argument. Prosecute them both. Both ARE guilty. Both deserve the same punishment, though the so-called doctor’s punishment would be multiplied by the # of murders he has done.

    These women aren’t victims. They are hateful creatures hiring a hit-man for their own convenience. Both parties are guilty of murder.

    • steve hays April 7, 2016 at 10:43 pm #

      It’s just imaginary to think women who have abortions will be subject to prosecution. You may think that ought to be the case, but it’s make-believe to suppose that’s a realistic scenario.

      It’s a distraction from what can actually be done, and it sets the cause back rather than forward.

      • Christiane Smith April 8, 2016 at 9:05 am #

        Hi STEVE HAYS,
        the ‘anger’ thing is only one understandable instinctive human way of re-acting against the tragic loss of unborn life, but I am in agreement with you that it does NOT offer a positive solution to ‘what can actually be done’ . . .

        for those women who, in despair, seek out abortion as a ‘solution’, there is another level of response that is far more effective and it is born out of an actively expressed compassionate caring for their situation and for a commitment to helping them through their crisis so that they can abstain from a decision that they really don’t want to make.

        The difference between the anger/criminalization/punishment end of the spectrum and the actively caring crisis intervention commitment can be found in Christian ‘caritas’ and is a response impelled by grace lived out in those who care for these women and their unborn children . . .

        the difference ? one of these responses is a ‘human’ response . . . the other finds its strength in the grace of God and in the way that grace can be translated to a person who is ‘lost and confused and without a shepherd’ . . . in short, the contrast is clear . . . there is no comparison between the two responses

      • David Dunbar April 8, 2016 at 1:01 pm #

        That is pragmatism at its worst.
        Realistic in our current political climate? Perhaps not. But if someone murders your child (whether he is born or unborn), and the powers-that-be say “it isn’t realistic to prosecute the murderer”, you’ll be less than satisfied. (Actually you’ll be outraged — as you should be.)
        Why should we be less than outraged at the murder of the innocent? Bring ALL the offenders to justice!

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