Punishing Women Who Procure Abortions

GOYA_-_El_aquelarre_(Museo_Lázaro_Galdiano,_Madrid,_1797-98)-2
Francisco Goya, Witches’ Sabbath, 1798

Anti-abortion activists usually believe that the practice of abortion constitutes the murder of an innocent human being (or else something similarly heinous). Unsurprisingly, they also usually believe that the law should prohibit abortion in most—if not all—cases, just as it does for other murders. Of course, the successful enforcement of any law prohibiting abortion would ultimately require some sort of punishment for violating it.

Anti-abortion activists generally agree among themselves that those who actually perform abortions on women—call them abortionists—should be punished in some way if abortion ends up being legally prohibited. After all, for the crime of murder more generally, the law punishes principals, the ones whose acts directly bring about the criminal result. So if abortion is a form of murder, then it’s sensible to punish the principals of the crime of abortion, which in this case are the abortionists.

But the law, as it should, also punishes accomplices and accessories to murder. An accomplice is someone who intentionally helps a principal during the commission of that crime, while an accessory is someone who does so either before or after the crime. In the context of abortion, women who procure abortions from abortionists appear to qualify as accomplices or accessories to their abortions. This is because they intentionally cooperate with—and therefore help—abortionists during and even before their abortions by scheduling appointments with, meeting, and compensating them for their services. So, applying the earlier rationale for punishing abortionists, the law should also punish women who procure abortions in some way.

Despite the seemingly straightforward reasoning, very many anti-abortion activists seem to disagree with this conclusion. But it’s not just that they publicly proclaim to disagree with it. That by itself wouldn’t be very surprising. Anti-abortion activists have good tactical reasons to publicly deny wanting to punish in any way the procurement of abortions, not the least of which is to avoid alienating feministic organizations and women in general from their movement. And they can make this public denial without actually believing it. But what’s surprising is that they don’t: the activists in question actually believe that women who procure abortions shouldn’t be punished in most—if not all—cases. In this post, I’ll explain their main arguments for this conclusion and show why each of them fails.1

Reduced Culpability?

Their principal argument is that the moral culpability of women procuring abortions is often reduced by several factors. These include familial, social, or economic pressures or even coercion into having an abortion, deception by individuals and organizations supporting abortion rights or providing abortions, the fact that women aren’t confronted with the humanity of their fetuses, and ignorance of the humanity of the unborn. The last factor is especially important because murder as it’s typically understood requires an intention to kill a human being.2 If a woman procuring an abortion is ignorant of the humanity of the unborn, then she cannot be guilty of murder in a moral sense. At best, she could be guilty only of some less serious immorality.

There are at least three problems with this argument.

First, reduced culpability isn’t the same as no culpability. To be sure, reduced culpability of the women might call for a reduced punishment. But it doesn’t call for no punishment at all.

It might be objected that culpability, even if it’s not completely eliminated, can be reduced to such an extent that punishment is no longer called for. For instance, the law doesn’t punish wrongdoings such as lies (aside from perjury) or unprovoked and cruel insults. This is, the objection goes, in part because the culpability for them isn’t sufficiently great enough to call for punishment.

Of course, one might respond, as I would, by noting that it’s not obvious that the current legal state of affairs is ideal. Perhaps the law should punish these kinds of wrongdoings when feasible. But even if it shouldn’t, women who have procured abortions would probably still be culpable enough to deserve some sort of punishment. After all, murdering an innocent human being is a very—perhaps the most—heinous wrongdoing. So it’s unlikely that women’s culpability from that assisting in that action can be sufficiently reduced by these factors such that no punishment is called for.

Second, it’s fairly uncommon for all or even most of these factors to apply at once to a given woman. So even if these factors cumulatively reduce women’s culpability to the point that they don’t deserve any punishment, this usually doesn’t happen. In most cases, only a few—if any—of the factors apply. It would be foolish not to punish women for procuring abortions simply because a relatively small segment of them might not deserve punishment. Prosecutorial discretion in enforcing laws prescribing such punishments would suffice to ensure that this segment would avoid injustice by the state.

Indeed, as a more general point, laws punishing the procurement of an abortion are good policy regardless of the number and kind of mitigating circumstances that a given woman might be in. This is because prosecutorial discretion helps ensure that violators of these laws are treated according to their degree of culpability. The only cases where this wouldn’t be true are where the costs of prosecution (including the ability to exercise prosecutorial discretion) to the state are so great that it’d be better just not to have the laws at all. But such cases are far and few between. It doesn’t seem very costly to prosecute people involved in abortions, after all. And if the state can afford to prosecute abortionists (as many anti-abortion activists would hold), then it very likely can afford to prosecute women who procure abortions too.

Third, these factors—even when taken individually—either don’t occur much at all or fail to significantly reduce culpability.

Take first the pressure and coercion factors. Nowadays in America, the option of putting a child up for adoption is readily available to women with unwanted pregnancies. Furthermore, there is little, if any, familial, social, or economic pressure against putting a child up for adoption. If anything, in fact, there is pressure and even coercion for putting a child up for adoption, as a sizable segment of the population views adoption as a better alternative to abortion. So the assertion that women are pressured or coerced into having abortions instead of putting their children up for adoption isn’t founded upon fact.3

By contrast, the deception factor does occur insofar as women are often given false or misleading information meant to persuade them to procure abortions. But this factor doesn’t significantly reduce their culpability. It’s true that individuals and organizations supporting abortion rights or providing abortions provide deceptive information about the nature of the fetus and about the health and other long-term consequences of abortion. But it’s also true that anti-abortion activists have made great efforts to counter this deception and educate women who are considering abortion both at and away from abortion clinics. And thanks the Internet, anti-abortion literature, videos, and audio proliferate across cyberspace, which women can effortlessly search for and access it through laptops and smartphones. Any remotely responsible woman considering abortion would at least come across anti-abortion media at some point before making her decision. And based on the evidence from and judgment of many experts in medicine and ethics, she would refrain from making a choice that had a substantial likelihood of killing an innocent and helpless human being. Women who fail to do even this much act with so terrible a negligence or recklessness that it’s difficult to see how their culpability is significantly reduced.

The last two factors—the fact that women aren’t confronted with the humanity of their unborn children and their ignorance of the humanity of the unborn—both don’t occur much at all and fail to significantly reduce culpability.

Start with the first of these factors. I take this factor to refer to a way in which a woman’s culpability for having an abortion can be reduced even if she knows at a theoretical level that her unborn child is a human. Specifically, since she never sees the child (because he’s within her body), she doesn’t have to be reminded of his humanity when having him aborted.4 And so her culpability is reduced.

One, however, should question the frequency with which this actually occurs. Due to the rise of ultrasounds that women view prior to having abortions (as mandated in certain states), many women are able to see in considerable detail the very human shape, features, and movements of their unborn children. As a result, they are powerfully reminded of their children’s humanity and thus are confronted with it after all.

But more importantly, even if they weren’t confronted with it, it’s doubtful that the reduction in their culpability would be a significant reduction. One who participates in the killing of innocent human beings he knows about but cannot see is almost exactly as culpable as he would be if he could see them. For example, an employee on board a bomber who helps the pilot destroy a building to kill the civilians hidden inside is almost exactly as culpable as he would be were the targeted civilians in an open field instead. And the underlying principle here applies just as forcefully for women who have abortions.

The second of the two factors fares no better because it’s false that women are ignorant of the humanity of the unborn. Most women in fact believe that the unborn are human beings. At the very least, they have the belief that the unborn are human beings, even if they simultaneously hold conflicting beliefs through acts of cognitive dissonance. This is evident from a relatively recent poll on the subject. Among women, 55% of them believe that life begins at conception, 70% believe that fetuses in the womb are people, and 79% believe that prosecutors should be able to charge an attacker who causes a pregnant women to miscarry with murder. Admittedly, the poll doesn’t tell what portion of these women believe that abortion is morally okay, have gotten an abortion, or would ever get an abortion. But its results create a strong presumption that at least some women who do also have the belief that the unborn are human.

There are other reasons for thinking that women who procure abortions have this belief. It’s likely that most pregnant women in general believe that the unborn being within them is a human being. They already are biologically predisposed to bond with their fetus emotionally and psychologically such that they consequently value it as a human being. This is clear from their descriptions of their fetus as a “baby” and from their treatment of the fetus in terms of adoring it and even talking to it. Moreover, the behaviors of and sensations caused by the fetus—especially in the later stages of pregnancy—approach those of newborns and therefore are perceived to be indicative of humanity. Advances in ultrasound and similar technologies only enhance this perception, and at increasingly earlier stages of pregnancy at that. Indeed, many women who were planning to have abortions have ended up changing their minds, sometimes at the last minute, precisely because of this perception. The evidence makes it clear that women just aren’t ignorant of the humanity of the unborn.

But even if they were, their culpability for abortion still wouldn’t be significantly reduced. As explained earlier for the deception factor, women today have unprecedented access to resources online and in real life articulating the case for the humanity of the unborn and the consequent wrongness of abortion. Even when they aren’t persuaded by this case, they, if they are responsible, must at least acknowledge that there is a substantial likelihood that it’s correct. And, if, again, they are responsible, they also must refrain from having an abortion due to the serious risk of killing an innocent and helpless human being. Women who fail to do this are only marginally less culpable than they would be if they aborted while also being persuaded by the case for the humanity of the unborn.

Due to these problems, the argument from reduced culpability is a failure.

Practical Problems?

Another argument is that punishing women who procure abortions would be legally infeasible. The argument goes like this. In criminal law, having a certain mental state is an element of a crime that generally must be proved beyond a reasonable doubt for one to be convicted and punished for that crime. Hence, if procuring an abortion were a punishable crime, prosecutors would have to prove that women charged with procuring abortions had a certain criminal mental state.

According to the argument, however, this is very difficult to do. Even granting the responses made to the previous argument, some women still sincerely might not believe that the being they’re having aborted is a human being. And since prosecutors aren’t mind readers, proving beyond a reasonable doubt that a women did have this belief would be no small feat. It’s better, the argument concludes, to just avoid this problem by having laws against the procurement of abortion at all rather than rely on prosecutorial discretion to weed out the hard cases.

But there are serious problems with this argument.

First, as noted before, the proposed solution would be reasonable only if the costs of prosecution to the state outweighed the benefits of these laws. But among these benefits are the protection of the most vulnerable human beings from a gruesome death and the realization of justice for those who have killed them. The costs of prosecuting women who procure abortions don’t even come close to outweighing them.

Second, the laws prohibiting abortion and punishing those who procure them needn’t require an intention to kill a human being as an element of the criminalized act. Rather, they can simply require an an intention to terminate the pregnancy or undergo an abortive procedure as an element. That this intention is not as bad as the intention to kill a human being doesn’t make these laws unfair either. As established earlier, a woman who procures an abortion but does not intend to kill a human being (say, out of ignorance of the humanity of the unborn) is usually almost as culpable as a woman who procures an abortion and does intend to kill a human being. So, such laws punishing women for acting with this slightly less heinous intention wouldn’t be unjust.

Third, and notwithstanding the second problem, laws prohibiting abortion and punishing those who procure them could simply require a mental state that is easier to prove than intention, such as knowledge or recklessness. For instance, the laws could punish a woman who procures an abortion if she knows (but not necessarily intends) that a human being will be killed by the procedure. Or they could punish her if she behaves recklessly: consciously disregarding the substantial risk that the procedure will kill a human being. In fact, having the laws require recklessness could be an excellent policy. As discussed in the analysis of the argument from reduced culpability, women who recklessly bring about the death of the unborn children are about as culpable as those who do so intentionally.

Counterproductive?

So much for the infeasibility argument. There is, however, a related argument that punishing the procurement of abortion is counterproductive in terms of preventing overall abortions. According to this argument, punishing women who procure abortion would require charging them as accomplices to the abortionist’s crime. But under American criminal law, accomplices (generally) cannot testify against principals. This would mean that women who have procured abortions would be unable to testify against their abortionist. And this would most likely lead to the case against him being dismissed due to insufficient evidence. The abortionist would then be free to continue performing abortions on other women, and the number of abortions would continue to rise.

This argument is particularly poor for the following reasons.

First, the assertions about American criminal law upon which this argument lies are dubious at best. Many jurisdictions have allowed and continue to allow for an accomplice to testify against a principal so long as there is some independent evidence connecting the principal to the crime he’s accused of committing. Such evidence would include evidence placing the abortionist at the scene of the abortion he’s accused of performing. This evidence would be very easy to obtain, especially with modern technology. Locational data from GPS or cellular phones, security footage of the abortionist or his vehicle, DNA or other biological traces of the abortionist at the scene, and DNA or other biological traces of the aborted fetus on the abortionist’s person, instruments, or other property are such evidences, and they could be readily obtained by the prosecution and its aides and allies.

Second, women who procure abortions needn’t be charged as accomplices to the abortionist’s crime at all. Laws can be made against the procurement of abortion that are distinct from the laws against the performance of abortion. This would allow prosecutors to charge women who procure under the former laws without being charged under the latter one.

Third, and most significantly, if the laws against the procurement of abortion are statutes passed by a legislature (rather than created by judges over time through decisions), then the federal or state legislature passing the laws in question can easily carve out an exception to their evidentiary rule prohibiting accomplices from testifying against principals to allow women to testify against abortionists. Legislatures, after all, make other exceptions to otherwise rigid evidentiary rules in particular kinds of cases.5  So there’s no good reason why they couldn’t do so here as well.

Second Victims?

One final argument is that women who procure abortions shouldn’t be punished because they are victims rather than criminals. Specifically, they are the “second victims” of the abortionist, after their unborn children. The idea here is that women suffer—or at least used to suffer—from the abortionist’s conduct. Aside from the strong sense of loss resulting from the abortion, women also faced risks from illegal abortions, which, at least historically, were dangerous and often fatal. And punishing women who have already suffered or are at risk of suffering seems unfair to them.

But even a moment’s reflection should reveal how flimsy this argument is. It’s not uncommon for murderers in general or their accomplices to experience emotional distress and other psychological damages from their murders and for their murders to involve life-threatening risks to themselves. Nevertheless, the law rightly still condemns them, and they are prosecuted with just the same vigor as other murderers or accomplices to murder. There’s no reason why the law should treat women who procure abortions differently even if they do suffer or risk suffering from the abortionist’s conduct. Of course, modern abortifacient pills (and other abortion-inducing substances) and abortion procedures in general are much more efficient and safe than they were a century ago. This means that women today are at a very low risk of suffering (much) from abortionists’ conduct. So, the argument is weakened even further.

Conclusion

Anti-abortion activists that believe that women who procure abortions shouldn’t be punished in any way are therefore unjustified in their belief. It’s hard to see why exactly they have persisted in this belief despite its implausibility. One can suspect, however, that a desire to remain in good standing with women, feminists, and the culture at large is part of the cause. Whatever it is, though, they shouldn’t actually have this belief, even if the situation might call for them to falsely profess it.


1. This post will not address the punishment of women who perform abortions on themselves. That being said, it is more difficult for anti-abortion activists to hold that such self-induced abortions shouldn’t be punished. This is because, unlike women who merely procure abortions, women who perform abortions on themselves are the principals of the crime of abortion. And punishment is more clearly appropriate for principals of a crime than accomplices or accessories. Perhaps the strongest argument against punishing such women is that it would be impossible to enforce, lest every woman who experiences a miscarriage be a suspect of the crime of abortion. But even this argument is terribly weak. Arrests and charges are not made unless there is reasonable cause to think that a crime has occurred, and there’s no reason to think that this standard couldn’t, wouldn’t, or shouldn’t apply to self-induced abortions.

2. Of course, murder may require more than just this intention.

3. This does not necessarily mean that women don’t often feel as though they are being pressured or coerced into having abortions, even though in reality they aren’t. According to one study:

58.3% of the women reported aborting to make others happy, 73.8% disagreed that their decision to abort was entirely free from even subtle pressure from others to abort, [and] 28.4% aborted out of fear of losing their partner if they did not abort . . .

Let us assume for the sake of argument that the sample surveyed in this group is representative of all women who have abortions. Even then, it is plausible that this finding can be explained primarily by a frequent misjudgment on women’s part regarding what others think or demand of them rather than actual pressure or coercion. Additionally, it may also be due to a failure to adequately consider putting the children up for adoption (or from simply not knowing enough about that option). It may even be due to self-deception: women who have abortions often don’t wish to feel guilt for their actions and can deceive themselves into thinking or remembering that they were under pressure or coercion when they really weren’t.

4. By contrast, the abortionist does see the child in most cases since he must handle and dismember him. Thus, he is reminded of the child’s humanity in a way the woman isn’t.

5. See, for example, Rules 412–415 of the Federal Rules of Evidence, which allow an exception to the general rule against character evidence in sexual assault and child molestation cases.

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