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The Story: For the first time in a century, an American woman was arrested for performing a self-induced abortion. She was later released, and her charges were dropped. Here’s why most pro-lifers support the decision not to prosecute (at least for now).

The Background: Last week, a Texas woman was charged with murder after authorities said she performed a “self-induced abortion.” A spokesperson for the Starr County Sheriff’s Office said Lizelle Herrera, 26, was arrested after it was learned she “intentionally and knowingly cause[d] the death of an individual by self-induced abortion.” But Gocha Allen Ramirez, the district attorney of Starr County, said he would be filing a motion to dismiss the indictment against Herrera.

Self-induced abortion refers to the practice of carrying out an abortion without medical care, often by self-administering pharmaceutical pills, toxic substances, or plants and herbs believed to end a pregnancy. Self-induced abortion is not a criminal offense in Texas. The state law on criminal homicide does not apply to “the death of an unborn child if the conduct charged is . . . committed by the mother of the unborn child.” As Ramirez added, “It is my hope that with the dismissal of this case it is made clear that Ms. Herrera did not commit a criminal act under the laws of the state of Texas.”

Most pro-lifers support the decision not to prosecute women for performing self-induced abortions (at least for now).

Another law, S.B. 4, which establishes a criminal violation for providing medical abortion pills after 49 days of pregnancy, also exempts pregnant women from prosecution.

The pro-life group Texas Right to Life supported the district attorney’s decision to drop the charge, saying the organization “opposes public prosecutors going outside of the bounds of Texas’ prudent and carefully crafted policies.”

What It Means: Why are women not held criminally liable for having an abortion? And should they be?

There are few questions that are more divisive among committed pro-lifers than these. How we answer the question is often determined by whether we’re pro-life incrementalists or immediatists. Pro-life incrementalists tend to support government actions that affirmatively protect the unborn and women by reducing or restricting abortion in whatever ways are currently considered feasible. In contrast, immediatists believe that incrementalist efforts should be rejected on principle and that the most, or only, moral position is the immediate and total abolition of abortion.

Almost all principled pro-lifers are in some sense immediatist since our ultimate goal is the immediate end of the practice of abortion. Where the difference lies is in the question of what we should do right now since we don’t have the power to immediately end abortion. The incrementalist position is that we should work to save what children we can by taking actionable steps to put limits and restrictions on abortion. The immediatist position is that we should reject incrementalist legislation and work only for the immediate abolition of human abortion through constant efforts of moral persuasion.

Immediatists almost always believe abortion is a sin and a crime, and that women should be charged with murder for having an abortion. Incrementalists almost always believe abortion is a sin and a crime, but that women should not be charged with murder for having an abortion. The disagreement is connected to the primary question that separates the groups: In the absence of absolute justice, should we seek proximate justice and save what babies we can? Incrementalists say yes, while immediatists say no.

In the absence of absolute justice, should we seek proximate justice and save what babies we can? Incrementalists say yes, while immediatists say no.

No argument is going to persuade immediatists that we shouldn’t charge mothers who abort their children with murder. But some incrementalists are also unsure of why refraining from prosecuting such women is the most justice-promoting action we can take. There are two arguments pro-lifers make in defending this position.

The first is the “two victims” principle. Prior to the Roe v. Wade decision, when abortion was mostly illegal, women who had abortions were not treated as criminals, but as victims. The only two exceptions are from Pennsylvania in 1911 and Texas in 1922. Some states also considered women as “accomplices,” but such laws were never applied or enforced. As Clarke Forsythe, one of the premier legal scholars on abortion laws in the United States, explains,

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.

Even if we reject the view that the woman who chooses an abortion can also be a victim, there’s a compelling reason to avoid holding her legally culpable: we want to prosecute abortionists. The purpose of forgoing prosecution of the mother is not to let them evade the moral consequences of their actions, but to help ensure the principal 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 (e.g., an attending nurse) could evade conviction for his or her crimes.

Pro-life incrementalists 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.”

Currently, the prudent strategy for pursuing proximate justice is to forgo the punishment of the women who have an abortion so that we can punish the abortionist. But in the near future that moral calculus may change as access to chemical abortifacients increasingly makes it possible for the mother and the abortionist to be the same person.

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