Intentionally killing another human being is first-degree murder. Murder is against the law. So, anyone who commits murder, or commissions a murder via another agent, is guilty of murder and should be prosecuted and sentenced for that crime. Seems like a fairly straightforward argument, right?
Yet mainstream pro-lifers vigorously resist this argument. At the same time they insist that “the unborn child is a human being, worthy of legal protection,” as Sarah St. Onge wrote in these pages recently, they loudly protest when so-called “fringe” pro-lifers state the obvious: of course women who willfully hire abortionists to kill their children should be prosecuted.
I have made this argument before, when Ben Shapiro voiced the same inconsistency last year, although for a different reason than what St. Onge has argued.
The Difficulty of Prosecuting Post-Abortive Women
St. Onge rightfully pointed out the media have misrepresented the Ohio “heartbeat bill” that would require medical professionals to determine whether a fetal heartbeat is detectable before performing an abortion, as well as add informed consent requirements to abortions performed past the point where a fetal heartbeat is detected. St. Onge asserts that some members of the media misled the public on the nature of the bill that actually made it out of committee for deliberation. It’s always worthwhile to set the record straight.
However, the author goes on to make a fallacious argument against the idea that women should be prosecuted: according to St. Onge, prosecuting post-abortive women would mean “there would be a high probability for false imprisonment when women miscarry or deliver a stillborn baby.” She cites El Salvador’s alleged false imprisonment of women who maintain they miscarried as evidence that this is a likely scenario in the United States.
Since coercion plays a significant role in many abortions, and it is difficult to ascertain whether coercion led to the abortion, women shouldn’t ever be prosecuted, or so her logic goes. St. Onge also assumes that because she wasn’t able to find any cases where men were jailed for coercing a woman into an abortion, that necessarily means that it is impossible to properly dispense justice when prosecuting those who have obtained abortions.
Both these lines of reasoning are deeply problematic. Firstly, while the case of El Salvador’s “Las 17” women who were imprisoned for abortion ostensibly without clear evidence they induced abortion is alarming, it is not a good estimate of how prosecutions would proceed in the United States. El Salvador’s legal system suffers from corruption, for one. In 2012, 80 percent of El Salvador’s judges were under investigation and the vast majority had pending complaints against them. Its 2017 ranking under Transparency International’s Corruption Perception Index is 33 out of 100, compared to the United States’s ranking of 75 out of 100.
A more analogous situation is that of the United Kingdom, which, despite having some of the most permissive abortion laws in the Western world, has managed to successfully prosecute a handful of illegal abortion cases. These were cases where the evidence was overwhelmingly clear that these women intentionally killed their preborn children. One woman was found to have procured abortifacients and left the remains of her preborn baby in a household trash can.
The argument that women will be falsely imprisoned for miscarriage like in El Salvador is tenuous at best. Our standard for evidence in criminal cases is very high, and DIY (or “do it yourself”) abortion often leaves a trail of evidence, such as procuring abortifacients online or text messages demonstrating intent to abort.
Will DIY Abortions Be Similarly Hard to Prosecute?
Let me address another common objection while we’re here: that prosecuting women would be incredibly difficult because DIY abortions are performed in secret, generally at home. While it is true that if abortion were made illegal tomorrow, many first-trimester abortions would go unnoticed, or at least un-prosecuted, the fact that many abortions would slip under the radar for lack of evidence does not mean all women who abort should be shielded from the potential of prosecution. It’s a non sequitur.
This is much like the fallacious argument from pro-choicers that because a small minority of women are impregnated through rape or face serious health complications, therefore all abortions should be legal. Indeed, if we applied this same reasoning to drunk driving and said, “Most drunk drivers are never caught, therefore we shouldn’t enforce DUI laws,” the public would be outraged. If the state or federal government said, “Many people charged with drunk driving have been given faulty DUI testing that overestimated their Blood Alcohol Concentration, therefore we shouldn’t screen for drunk driving anymore,” the marches on state capitols and on Washington would be of historic proportions.
Let’s move to the second argument. The fact that women are often pressured or coerced isn’t an excuse to not prosecute abortion. Coercion is a reason to make abortion illegal or at least “culturally unacceptable,” as the author in one of the articles St. Onge linked to declared. Moreover, even in cases where women face tremendous pressure (Human Coalition estimated more than one-third of patients who visited one of their clinics were pressured), is the fact that your boyfriend will leave you if you don’t abort a valid defense against being held responsible for your actions?
While situations like this could be mitigating factors in sentencing, it is a poor argument for not prosecuting women at all. Leaving this untouched by the law would seem to enable coercion for black market abortions, as if our legal system doesn’t care if people put women in dangerous situations and demand they kill their own children. I want to see fathers and anyone else for whom there is proof of coercion punished under the law. Throw the book at them; don’t use them as a ramrod to force your way past an uncomfortable truth.
Does the Coercion Argument Discount Female Agency?
Using the coercion argument as a reason not to punish post-abortive women––and blurring the distinction between general pressure and direct abuse of authority or power to force a decision against the woman’s will––denies women their agency and responsibility.
As I said last year responding to Shapiro’s talking points: “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,” we are now supposed to believe, when they have an abortion, that they are only easily-manipulated, fragile incubators.
St. Onge does throw in one good practical reason at the end to support her position: many of those same women who committed that horrible act then become champions for the pro-life cause. This is worth considering. Yet when one examines this more closely, the avenues for mercy already built into our legal system––such as pardons and commutations––should adequately address this concern.
People who have had a change of heart and aren’t a danger to society can be given a second chance. Yet even those in prison have voices and can become serious public influencers, and we cannot throw out all justice because some offenders come to see the truth and earnestly repent.
This Double Standard Hurts Pro-Lifers’ Credibility
None of this is meant to downplay the amazing work pro-lifers do who believe in all these arguments, but they must nevertheless be called to attention. When pro-lifers cannot face up to the logical conclusions of their own arguments, we lose credibility.
Is it a human individual or is it just a lump of tissue for a woman’s intents and purposes? Well, pro-lifers assert that a fetus is a human being. So is killing it murder or not? We’re supposed to call it murder, but not treat it like murder? If we favor deterrence through punishing abortionists, why would we not favor deterrence for hiring the abortionist?
None of this makes any sense. While maintaining these inconsistencies may allow for moderate changes to the abortion regime, they will never succeed in outlawing abortion on a large scale or making it truly “culturally unacceptable.” Pro-lifers lose some of that zeal that comes from knowing the truth because they are constantly pouring effort into propping up failing arguments to appeal to moderates; yet the left keeps winning moderates by turning what should be well-presented, carefully considered, and logical arguments into scare tactics because no one is willing to think it through and articulate it to them.
You don’t have to ultimately agree with the practicality of, say, putting the death penalty on the table for abortion, to take the position seriously and respect its logical consistency. Yet mainstream pro-lifers are falling into the left’s hysteria trap by frantically trying to quash any mention of such propositions. We can’t seem to have an honest conversation even about prosecuting women, much less a death penalty, because we’re too busy trying to save face.
Backing prosecution for women who get abortions is the only tenable position to take. From there, the arguments are more practical. How long of a sentence is reasonable? How do mitigating circumstances factor in, such as coercion from a partner or family members? Are convicted aborters a danger to future children or society in general? How do we balance the cost of incarceration with the concept of justice? Are there other ways they can pay for their crimes?
Yet we can’t seem to move on to those important discussions, to introducing them carefully and thoughtfully to the public, because both the left and the mainstream pro-life movement are stuck on the fallacious idea that women should be exempted from all responsibility for their actions. For the pro-life movement to succeed, they need to embrace their own core arguments’ conclusions.