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Each violation of criminal statutes is subject to prosecutorial discretion. You can see this time and time again on any criminal drama on TV as I saw it as a private defense attorney. Two or more perps are arrested and are equally guilty. First one to rat out the other(s) gets a serious break, discount or dismissal.

With abortion, you must make sure that no break is EVER available to the abortionist and that, after appropriate testimony, the woman can always walk. The purpose is, after all, to stop abortion. Punishing the women individually will not work, will convict few women (who will have compelling excuses to play the emotion card with the jury as moneybags Jack the Slice will not have) and will let the actual abortionist off the hook as often as not for lack of credible or sufficient evidence.

Connecticut was one of the very first states to criminalize abortion. It did so in the 1820s when Congregationalist ministers (Connecticut's established religion until 1818) in four different communities were charged with aborting the offspring of their respective illegitimate relations with women not their wives. Connecticut remained staunchly pro-life until well after Roe vs. Wade. The Connecticut statutes on abortion (including those passed by 5-1 in each house of the General Assembly in 1972 or so) provided for a five-year jail term for the woman and a five-year jail term for the abortionist. Yet, the actual history of prosecution was that actual prosecution of the women beyond preliminary efforts was rare. The felony with five years penalty was hung over the women to force them to testify against the abortionists which they generally did. When the abortionist was convicted on the testimony of the woman, the charges against the woman were dropped.

The net result was to choke off the supply of abortionists. If you try to convict each woman, there will be an intolerable backlog that will frustrate justice. Let her testify against Dr. Death in exchange for dismissal of her charges. She can take the Fifth Amendment when brought to the witness stand, in which case she is prosecuted and the doctor MAY go free for the moment. More likely, she will testify and guarantee the abortionist's conviction. "Another one bites the dust! And another one down and another one down...." How many women will serve the abortionist's term for him????

That is how abortion was controlled and frustrated and punished in Connecticut and many other states for most of the history of the republic and how it can be again.

Our biggest problem is going to be stopping "jury nullification" by those pro-aborts willing to lie under oath in voir dire to become jurors who refuse to convict.

We are still going to have to fight the public relations war. Ultrasound will help immensely but we can take nothing for granted.

We’re not having trouble charging or convicting third parties for killing children in Texas under the Prenatal Protection Act (our “Connor and Lacy” law) that we passed in ‘03. I believe that 2 or 3 cases have survived appeal to the Texas Supreme Court or are being considered at the TSC at this time.

This law also shows the distinctions that can be made under law.

Some District Attorney decided to use the law to prosecute women who used drugs while pregnant. The women took plea bargains and plead guilty. Then they fought the cases under appeal and won.

The law was never intended to prosecute a mother. In fact, realists and incrementalists that we had to be, the only way we could get it passed was to specifically exempt the mother of the child and a legal medical “provider” doing what she hired him to do.

One reason to *not* prosecute these women is that there are much fewer options for treatment for a woman, much less a pregnant woman. And while there’s no evidence that criminal prosecution for drug addiction does anyone any good - much less the family - as long as it’s legal to obtain an abortion, the threat of conviction encourages abortion. That’s contraindicated for us prolife people.

There is some question, however, as to whether or not we can use the law in combination with new parental consent law, in order to criminally prosecute abortionists - some say with a charge of capital murder - who intentionally kill the children of girls who are not able to consent under Texas law.