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.”
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.