Observations: Criminal Penalties for Abortion

Seven years ago, when the U.S. Senate considered a Human Life Amendment to the Constitution, abortion rights groups charged that such an amendment would require first-degree murder charges for women suspected of having abortions. Planned Parenthood warned that “even a miscarriage could be investigated as a criminal offense.”

That charge was resurrected during the 1988 presidential campaign, when Governor Michael Dukakis said Vice-President George Bush was “prepared to brand a woman a criminal for making this decision.” The Bush campaign denied this, saying abortionists should be prosecuted but women undergoing abortions should be seen as “additional victims of the procedure.”

In some quarters this response only prompted more ridicule.

Judy Mann of the Washington Post said Bush “was trying to figure out some way of not losing most of the nation’s women voters while currying favor with the anti-abortion zealots who make up a large part of the Republican Party’s right wing.” His solution “demonstrates beyond a doubt,” she said, “that his opposition to abortion is nothing more than cold-blooded politics and utterly devoid of any moral basis.” Similarly, Michael Kinsley complained in the Post that “it makes no sense to brand an activity as criminal while labeling someone who willfully procures that activity as a victim.”

To assess these charges, we should begin by looking at how abortion laws were enforced prior to the 1973 Supreme Court decisions that legalized abortion on demand.

In a 1981 study called Women and Abortion (American Center for Bioethics, Washington, D.C.), attorney Paul Wohlers reviewed prosecutions under the old abortion laws in all fifty states, and found that state courts generally did treat women as victims rather than criminals. Prior to 1973, says Wohlers, 17 states had laws that allowed for minimal fines and/or prison sentences for women who solicited abortions, but no woman was ever prosecuted under such laws. Abortionists were prosecuted for abortion, not the women having abortions.

The reasons for this were both pragmatic and humanitarian. The laws were designed primarily to shut down the abortion practitioner who might be destroying dozens of unborn children a week. Often the woman’s testimony was needed for a conviction—and in most states, testimony from an accomplice in the crime could not be used to convict without corroboration from other witnesses. Moreover, a woman with complications from an illegal abortion might delay seeking necessary medical treatment (and avoid reporting the abortionist who had harmed her) if she thought she herself might be prosecuted. The law tried to combine respect for the unborn with compassion for, the distraught woman who might feel she had been driven to an abortion. Abortion rights groups know all this, but claim that such flexibility would be impossible in a legal system that explicitly established the unborn as legal “persons” for the first time. Would such a system be forced to treat everyone involved in abortion as a murderer?

This question was answered in congressional testimony by Professor John Baker of Louisiana State University Law School. In 1981, Baker explained that a Human Life Bill declaring the unborn child to be a person may require states to recognize abortion as a form of homicide. But not all “homicides” are criminal—for example, killing in self-defense is seen as justifiable homicide—and there are many forms of criminal homicide that fall short of murder. “In order to prove any of the forms of criminal homicide,” he said, “the state must prove a harm (the death of a human being) caused by the defendant, while acting with a certain criminal state of mind.”

In miscarriage, of course, both elements of a crime are missing. “Moreover,” says Baker, “as a practical matter, it will be virtually impossible to know of or prove many deliberately self-induced early abortions.” The state must prove “beyond a reasonable doubt” that someone has caused the death of a particular human being: since early abortions generally provide no corpus delicti the state could make a “rational distinction” between these and other abortions, prosecuting even the abortionist for the lesser offense of criminal abortion rather than for homicide.

Recent accounts of women’s decision-making about abortion also call into question the assumption that most aborting women act with deliberation or malice aforethought. Having reviewed about a hundred first-hand accounts by such women, Fr. James Burtchaell says in his book Rachel Weeping (Andrews McMeel, 1982) that very often abortion “is backed into or backed away from, rather than decisively chosen and later ratified.” Uncertain about the human status of their child and their own principles and motivations, and pressured by lovers and family members as well as external circumstances, the women interviewed display more incoherence than firm resolve. Many felt they had not really made a “free choice” at all, because abortion was the only course of action presented to them by others. It is difficult to see the women described by Burtchaell as threats to society, and it is unlikely that threat of punishment would effectively deter them from a decision arrived at in such non-rational ways.

In many other areas of law, offenses against persons are treated with flexibility and leniency without provoking charges that the victim has been labeled a non-person. The most obvious instances involve crimes against oneself. Suicide presents the anomaly of an act that it is a crime to assist but not to commit. Penalties are obviously meaningless in the case of a successful suicide, and suicide attempters are seen as needing “help and love and not punishment” (as the Bush campaign said of women who have abortions).

Similarly, judges often suspend sentences for drug addicts if they enter a treatment program instead. But even those who directly kill seriously ill family members in so-called “mercy killings” often receive light sentences or probation—not because sick people are non-persons, but because the defendant acted under duress in a specific heartbreaking situation and poses no further threat to the community.

Hemlock Society officials say this leniency toward “mercy killers” reeks of hypocrisy. They propose simply rescinding the laws against homicide as they apply to the killing of a seriously ill patient at his or her request. But it is not hypocrisy to distinguish between the objective evil of a crime and the subjective guilt of the agent—it is an effort to temper justice with mercy.

Once abortion is demoted from its current status as a fundamental constitutional right, many legal responses would be possible which are now either invalidated or questioned by our courts: cutoffs of public funds to facilities that perform or encourage abortions; statutes to require parental consultation when minors seek abortions (a Minnesota law reportedly having achieved a one-third decrease in teen abortions before it was enjoined by the courts); injunctions by fathers and other family members to prevent the killing of their unborn relative; “wrongful death” actions seeking monetary damages for the death of the unborn; malpractice suits against physicians who caused the death of their unborn patients; public service campaigns to encourage childbirth over abortion (a difficult proposition at present because the government would be encouraging people not to exercise a constitutional right). Through these and other avenues, none of which involve criminal penalties against women, the law could again protect human life and restore some measure of justice to our dealings with society’s most vulnerable members. If some think this is hypocrisy, perhaps there are worse vices.


  • Richard M. Doerflinger

    Richard M. Doerflinger is Associate Director of the Secretariat of Pro-Life Activities at the United States Conference of Catholic Bishops.

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