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Ben Shapiro Is Wrong About Prosecuting Women Who Get Abortions


A young, self-identified liberal woman presented this question to Ben Shapiro during the Q&A following his much anticipated speech at the University of California at Berkeley last Thursday: “Do you believe women who get abortions even when their lives or the child’s life isn’t in danger, should be put on trial for murder?”

“No, I think abortionists should be put on trial,” Shapiro replied.

I don’t think that women should be put on trial for a couple different reasons. One is, I don’t think it is effective in deterring abortion for women to be put on trial for the killing of the unborn. The second reason is because unfortunately I think that we as a society have gotten to such a point that an entire generation have been indoctrinated to believe that a baby is a polyp and so when they remove it, I’m not sure there’s the necessary mens rea, the criminal intent necessary for prosecution. The typical pro life position is that the women is a victim in abortion nearly as much as the baby is. There is an entire abortion industry that is geared toward teaching women that babies are not babies and that getting a baby aborted is in fact a betterment of their life. So no, I am not in favor of prosecuting women for abortions.

The student pressed the issue, saying that some women do “have intent.”

“You’d really have to show me a case of a woman who went [into the abortion clinic] and said, ‘I know this is a baby, cut its brains out,’” Shapiro answered. “Like, if that’s happening, that is infanticide.” Shapiro then presented the hypothetical of a mother of a one-day-old infant who asked for it to be killed. “Wouldn’t you put her on trial?” he asked.

Shapiro may have a point that prosecution wouldn’t be an effective deterrent, but deterrence is not the main reason we prosecute. We seek justice for the victims, and that should remain the chief goal of the courts. The pursuit of justice is worthwhile in itself, and I would argue, a moral imperative.

Pro-Lifers’ Cognitive Dissonance

His second reason is also extremely weak, and it gets to the heart of a deep-rooted hypocrisy within the mainstream prolife movement. Shapiro says these women don’t have the mens rea (Latin for “guilty mind”), or intent, that the prosecution must demonstrate beyond reasonable doubt. Is that really the case? Most states use the Model Penal Code to determine mens rea. Its first classification of intent is “acting purposely” where “the defendant had an underlying conscious object to act.”

Obviously, if abortion were to be legally categorized as murder, a mother who orders the hit on her preborn child fits this definition of intent. A minority of states do employ a “malice distinction,” where the stricter definition is “Express malice,” in which the crime is committed “with the deliberate intent to bring harm to the victim.” Here again, it seems clear that someone who commissions the destruction of a preborn person has demonstrated “express malice.”

Shapiro does not hold murder as purely a moral distinction, in which case nobody would be prosecuted; he plainly believes someone has culpability under the law since he says abortionists should be put on trial. If the hit man is guilty, so is the person who ordered the hit. Being removed from the situation to not actually see the blood or watch the life leave the eyes of the victim does not exculpate the one who ordered the deed to be done. Yet even Shapiro cannot make it all the way to the conclusion of his own argument.

As he admits, Shapiro is not unique among pro-lifers in saying women should not be prosecuted, even for what most believe is murder. This insistence that the prosecution must demonstrate moral intent (and that they would be unable to) is an excuse to double back on the moral case on which the law would be founded.

In the hypothetical pro-life world, we would build this moral truth that abortion is murder into our laws. Should we then reject this foundation and assume the morality of abortion is in question, assuming the plain intent to harm a victim is what matters, regardless of the perpetrator’s underlying ideology or rationalizations?

I understand that the prospect is unpalatable. The debate over the political feasibility of classifying abortion as first-degree murder is a valid but separate discussion. But unpalatability does not a legal or moral argument make.

Ignorance of the Law Is No Excuse

Critics of my position argue that since the preborn are unseen and in early development, one might argue they are “unrecognizable” as human beings, and therefore as victims. But these distinctives of obscurity and prematurity cannot logically support a defense of mothers who abort. If the law plainly states that the preborn are to be treated as persons entitled to the rights of persons, and beyond that widely known scientific facts testify to the preborn’s humanity, then how can ignorance be a defense?

It never is in murder trials of humans who have been born. Intent largely plays in when it is time to consider the perpetrator’s charges and sentence. But even when an accidental killing has been committed there are legal consequences in our system, and for good reason.

Pro-lifers say they are concerned about justice for the preborn. Despite Shapiro’s assertion that women are “almost as much a victim” as the baby, the focus of the vast majority of prolife rhetoric is almost exclusively on demonstrating the humanity and preventing the killing of the preborn. The fundamental reasoning is that the preborn are people, and to kill them would be unjust.

If prolife advocates merely thought abortion was “tragic,” as many on the Left believe, they would not be picketing outside abortion mills every day of the week, or pouring hundreds of thousands of dollars into lobbying anti-abortion legislation. No, abolitionists call for banning abortion on the grounds it is unjust. They insist abortionists are guilty and should stand trial for murder, even while they avoid dealing with the guilt of the women who commission their murders.

Either Women Are Sentient and Responsible or Not

This is where conservative pro-lifers’ views of women, too, are revealed as utterly incoherent. Abortionists have blood on their hands, they insist. They know the tiny limbs they pull apart with forceps belong to a baby, and that the medication they prescribe will kill a baby.

When it comes to women in general, social conservatives largely agree with the Left that women are smart, capable autonomous agents—until it comes to abortion. Motherhood, beset with fierce protective instincts and a nurturing disposition, is a revered calling for which social conservatives praise women.

Where they would have celebrated the ‘mama bear’ instincts and conscientious choices of expectant mothers, here we are to believe they are ignorant incubators.

Yet when the mother does not want to be a mother, indeed is pressured by friends, family, a boyfriend not to be a mother, then these conservatives pivot to the position that these women are ignorant, weak, dependent victims who lack even the requisite faculties for agency. Where they would have celebrated the “mama bear” instincts and conscientious choices of expectant mothers, here we are to believe they are ignorant incubators.

It is true that abortionists try to obscure the facts of the matter, and it is true that many women face a lack of resources and severe pressure to abort, and are sometimes coerced. These instances should be exposed and those who coerce women to such a barbaric act should face the full force of the law; they are not an excuse to pardon all women who abort.

A woman need not be of the morbid “please rip my baby to pieces” mindset to be found guilty of murder. There is no excuse for ignorance at this point, especially in this country. Information from meiosis to mens rea is at our fingertips, or at the very least at the nearest library. A high school student who has taken even the most pathetic science class knows that sex makes babies, not polyps or tumors, and that the life growing inside of her has distinct human DNA that makes it an individual separate from her body.

Even the signs and scripts of the anti-abortion picketers outside the abortion mills, as distasteful as some find their tactics, declare the truth to these women. To insist that the abortion industry has a monopoly on the education of our young people is to present a false narrative and perpetuate a culture of victimhood and denial of personal responsibility, which are exactly what I thought Shapiro was dedicated to ending.

If you cannot see the guilt of women who abort even with the ubiquity of accurate pictures of life in the womb presented via ultrasound, and even after the Center for Medical Progress famously and explicitly exposed horrific scenes from the abortion industry that included the sale of baby body parts, then you must believe the moral degradation of our culture is beyond remedy, and that we will never get to a point where abortion is illegal, much less where women will be held accountable for their decisions. If such a point exists, pro-lifers need to tell us what that looks like. Shapiro says a woman must be of a morbid, rip-my-baby-apart mindset. Should that be the standard?

Whether he means to or not, Shapiro is telling women they are incompetent. But they are not brainwashed, they are self-determining agents with full consciousness of their actions. It’s past time for mainstream pro-lifers to confront their hypocrisy. The simple, correct answer to the young liberal’s question is, “Yes, of course women should be prosecuted.” It’s not politically or culturally palatable, but it is the truth.