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.
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.