Why Don’t We Punish Women Who Have Abortions?

During a recent town hall forum, Republican presidential candidate Donald Trump was asked by host Chris Matthews if he thinks there should be “some form of punishment” in the event of a ban on abortion. Trump said, “For the woman? . . . Yeah.” He added that the punishment in question would “have to be determined.”

The comment was quickly condemned by both those who support abortion and those who oppose the killing of the unborn. Within hours Trump released a statement reversing his position, saying, in part:

If Congress were to pass legislation making abortion illegal and the federal courts upheld this legislation, or any state were permitted to ban abortion under state and federal law, the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman.

Why Was Trump’s Initial Answer Wrong?

Because abortion has been legal throughout the country for two generations, many pro-lifers have not had to seriously consider the question of why women should not be held criminally liable for having an abortion.

Before we address that question, though, we should first ask whether women who had abortions were treated as criminals prior to the Roe v. Wade decision. The short answer: No, they were not.

Clarke Forsythe, president of Americans United for Life and one of the premier legal scholars on abortion laws in the United States, explains that before the Roe case, individual states not only targeted abortionists but also treated women as a victim of the abortionist:

[T[he almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second “victim” of abortion; state courts expressly called the woman a second “victim.” Abortionists were the exclusive target of the law.

[...]

This political claim [that that women were jailed before Roe and would be jailed if Roe falls] is not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.

Why Not Treat Them as an Accomplice?

Even if we agree that the abortionist is the principal in the crime of abortion, shouldn’t the woman who consents to the abortion at least be charged as an accomplice? This question should not be dismissed too readily, for it raises a serious question about justice.

Prior to Roe there were 20 states in which statutes technically made it a crime for the woman to participate in her own abortion. But as Forsythe notes, “these were not enforced or applied against women. There is no record of any prosecution of a woman as an accomplice even in these states.”

To understand why they were not charge, let's look at a representative case from Minnesota.

In 1878, an abortionist was charged with manslaughter for the death of Helen Clayton, a woman who died while having an abortion. The woman’s husband was present during the operation, and he was deemed by the court to be an accomplice to the crime. But the Minnesota Supreme Court ruled that Clayton herself was not an accomplice. As the Court explained:

As a first impression, it may seem to be an unsound rule that one who solicits the commission of an offense, and willingly submits to its being committed upon her own person, should not be deemed an accomplice, while those whom she has thus solicited should be deemed principal criminals in the transaction. But in cases of this kind the public welfare demands the application of this rule, and its exception from the general rule seems to be justified by the wisdom of experience.

This exception to the general rule wasn’t in place to let women off the hook from the moral consequences of their actions, but it was necessary to help ensure the principle criminal—the abortionist—would be identified, prosecuted, and brought to justice.

As Joseph Dellapenna, professor of law at Villanova University School of Law, explains, “if the woman were a criminal co-conspirator with the abortionist, in the common law tradition the abortionist could not be convicted on the basis of the woman’s uncorroborated testimony—and all too often there were no other witnesses and no other evidence.” Without the woman’s testimony, almost any abortionist clever enough not to have witnesses could evade conviction for his or her crimes.

Seeking Proximate Justice

Perhaps the most succint explanation for why women who have abortions should not be charged with a criminal offenses comes from Frederica Mathewes-Green:

The goal of abortion laws is to stop abortion. And the person to stop is not the woman, who may have only one abortion in her life, but the doctor who thinks it a good idea to sit on a stool all day aborting babies. End the abortion business and you end abortion. The suggestion that it’s necessary to punish post-abortion women reveals a taste for vengeance.

We should indeed be seeking justice rather than vengeance. And as Christians we must also recognize that sometimes in our fallen world the most we can hope for is proximate justice—an imperfect form of justice that recognizes that some justice is better than no justice at all. As Bethany Jenkins has said, “We pursue proximate justice in this age even as we recognize that true justice—the kind of justice that brings the dead back to life—will ultimately come in the age to come. Our longings for justice will only finally be fulfilled in the new heaven and the new earth.”

A consistent pro-life position can maintain that a woman who has an abortion may be morally culpable in the taking of an innocent life, and yet still recognize that in the interest of compassion and proximate justice (e.g., ensuring the conviction of abortionists) she should be treated solely as a second victim and not as a first accomplice.

A perspective from the Founding Fathers...

Any true constitutional conservative knows that Trump, not Cruz is right on this one. I guess Cruz missed the “Founding Fathers 101” class at Haaa-vaad.

The founding Fathers and the Right to Life by Jameson Taylor

The Declaration of Independence draws a very clear line between sanity and insanity by proclaiming the existence of certain self-evident truths that all rational men should recognize: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

A self-evident truth is, by definition, evident to anyone who is sane. Persons who do not accept that all human beings are endowed with an inalienable right to life—for example, the 82 percent of Americans who think abortion should be legal—are, by this definition, insane.

The right to life is inalienable because it is not of human, but of divine origin. Because man does not create himself, he cannot deprive himself of the primary goods that are inherent to human existence: life, freedom and happiness. Just as no government can deny its citizens these inalienable rights, neither can a man deprive himself of these rights. The “inalienable” right to life thus precludes abortion as well as suicide.

A Closer Look at Roe

But what about Roe vs. Wade? Does a “penumbra,” or shadow, of the 14th Amendment guarantee a right to privacy that includes the right to an abortion?

The fact is, as Justice Byron White’s dissenting opinion in Roe vs. Wade concluded, there is “nothing in the language or history of the Constitution to support the Court’s judgement.” Indeed, just as the logical development of the Declaration’s recognition of man’s inherent liberty required federal intervention to abolish slavery, the Declaration’s acknowledgment of the inalienable right to life would seem to favor federal intervention to end abortion.

James Wilson’s “Lectures on Law,” given at what eventually was to become the University of Pennsylvania, clearly affirm that the right to life encompasses the unborn. Wilson was one of only six men to sign both the Declaration and the Constitution, and was a Supreme Court justice from 1789 to 1798. Recognized as “the most learned and profound legal scholar of his generation,” Wilson’s lectures were attended by President George Washington, Vice President John Adams, Secretary of State Thomas Jefferson and a “galaxy of other republican worthies.” For this reason, as constitutional scholar Walter Berns states, “Wilson, when speaking on the law, might be said to be speaking for the Founders generally.” So what do the Founders say about the right to life?

Wilson clearly answers this question: “With consistency, beautiful and undeviating, human life from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and in some cases, from every degree of danger.”

Given Wilson’s exegesis, one cannot doubt that the Founders recognized that unborn infants are owed the full protection of the law. The key question thus becomes the point at which the unborn fetus becomes an unborn child.

Wilson, in agreement with the limited medical jurisprudence of his time, assumed that life begins with the “quickening” of the infant in his mother’s womb. As taught by Aristotle, the quickening was the point at which the fetus was infused with a human, rational soul. John Bouvier’s Law Dictionary, first printed in 1839, defines the quickening as follows: “The motion of the foetus, when felt by the mother, is called quickening, and the mother is then said to be quick with child. This happens at different periods of pregnancy in different women, and in different circumstances, but most usually about the fifteenth or sixteenth week after conception….”

One of the sources of both Wilson’s and Bouvier’s opinion is William Blackstone’s widely read Commentaries on the Laws of England (1765-1769). Blackstone’s discussion of the quickening observes: “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb… this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor…”

cont. reading here: http://www.lifeissues.net/writers/tay/tay_03foundingfather.html

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