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Love Them Both
Ana Brennan, J.D. 06 December 2018
In anticipation of Roe v. Wade’s demise, many states are working to restore the right to life of the unborn under state law. Some states have amended their state constitutions stating that abortion is not recognized as a constitutional right under their state constitution; while others have drafted legislation which would outlaw abortion completely, specifically Ohio and Oklahoma. Detailed bills have been introduced in both states that would re-criminalize abortion. Criminalizing abortion is consistent with pre-Roe laws, with one notable exception; both of these bills do not expressly state that women who seek abortions will be prosecuted, but that they could be. Prosecuting women who have abortions is completely at odds with pre-Roe America and the values of most pro-lifers.
Sadly, a recent article from the Federalist, “Yes, It Would Be Just to Punish Women for Aborting Their Babies,” by Georgi Boorman perpetuates the idea that, should abortion become illegal, both women and abortionists should be prosecuted. Never mind this position is completely at odds with pre-Roe abortion jurisprudence, which enforced abortion laws by prosecuting the abortionist, not the woman.
It is argued that it is inconsistent for the pro-life movement to not support the prosecution of women who have abortions. I for one do not ascribe to this proposition. I find it to be completely incompatible with basic principles of criminal law and justice. From her first sentence, Ms. Boorman gets the law wrong, “Intentionally killing another human being is first-degree murder.” Well, not exactly. First-degree usually requires “malice aforethought,” which is not the same as “intentional.” Also, first-degree murder, like almost everything else is defined in each state by statute. Her introductory sentence shows her propensity to overgeneralize and misapply the law.
Murder is not a strict liability crime. The actus reus (the guilty act) alone does not prove guilt. Guilt requires the prosecution to prove the requisite mens rea (mental state). Our criminal justice system recognizes that not all crimes are the same. There are mitigating factors that can exculpate or at least limit culpability; duress and coercion being among them.
Practically speaking, first-degree murder convictions are very difficult to get; especially in the context of abortion, which is rife with mitigating circumstances. To reject mitigating circumstances out of hand in the abortion context is to ignore the law itself.
There’s nothing inconsistent about calling for the prosecution of abortionists but not women. Our criminal law does nothing but make distinctions. Not every actor who partakes in criminal activity is held to the same standard. A doctor who illegally prescribes drugs is guilty of crimes and subject to penalties that are very different from the one who receives the prescription who depending on the circumstances and the state, might not be guilty of anything. (This example is to illustrate distinctions made by the law, not necessarily to the relationship between the abortionist and woman).
Like any other criminal situation assessing mitigating factors in the abortion context would be crucial to determining guilt. To dismiss the fact that many women are under duress or that it should not be considered a mitigating factor, when they have an abortion is just naïve. Even otherwise capable and strong people can acquiesce to pressure, especially from their support system. We all like to think we are strong enough to handle any situation, but that just is not true. The law recognizes that people can be influenced by extraneous factors, hence mitigation of mens rea. To argue that a woman who’s had an abortion cannot present any factors that may exculpate culpability is to argue for the most draconian of legal systems. It really doesn’t matter whether Ms. Boorman finds mitigating factors convincing or not, our legal system does.
Most pro-lifers are aware that dealing with an unplanned pregnancy can be overwhelming, which is why the pro-life movement is so quick to help women faced with a crisis pregnancy. But why would any pregnant woman need help? Maybe because there’s something inherently vulnerable about the situation. A vulnerability that can be preyed upon by others to get a woman to the abortion clinic. Needing help or making decisions under duress during a difficult time does not mean we are somehow absolved of personal responsibility. It's not a zero-sum game. To call into question someone's agency because they don't possess the proper mens rea to be guilty of a crime is inane.
Let’s play this argument out to its logical conclusion: If women who have abortions are truly first-degree murderers, then why doesn’t Ms. Boorman advocate treating them as such right now? Forget about sidewalk counseling. If a woman is “intent” on first-degree murder, how is speaking to her for 30 seconds as she walks into a clinic going to change her mind? To be consistent, if one believes post-abortive women are murderers, we as pro-lifers should abolish every group that provides post-abortion counseling and support and expel every post-abortive woman from our ranks. I don’t want to hang out with murderers. We would not be so kind and accepting to any other group of “murderers.” Being contrite and remorseful does not absolve one from punishment. Instead of helping the post-abortive women around us, we should have them imprisoned.
Ms. Boorman does not mention prosecuting the person who paid for the abortion, usually a parent or significant other. If the woman is a murderer then the person who paid for the abortion paid for a hit on that baby. Shouldn’t paying for murder also be punished? This seems to be a glaring oversight.
We already have jurisprudence regarding punishment of those who perform illegal abortions. This jurisprudence enforced the law by prosecuting abortionists without prosecuting women. Going after the abortionist saves the most lives. If women were also charged as co-defendants their ability to testify against abortionists would be compromised, thereby hindering prosecutions and convictions. The law also recognized the woman as a victim of abortion, which could lead to further charges against the abortionist. This may sound very pragmatic, but if we are really concerned about saving lives, then going after women is the least pro-life thing we could do.
The “we should also punish women” argument only makes sense if you ignore hundreds of years of criminal jurisprudence, the historic position of the pro-life movement, which recognizes the victimization of women, and the coercive reality of living in the Culture of Death.
 Clarke D. Forsythe, "When Abortion Was Illegal, Women Were Not Jailed for Having Abortions. Here’s Why," March 31,
 Georgi Boorman “Yes, It Would Be Just to Punish Women for Aborting Their Babies,” December 4, 2018,
Ana Brennan, J.D., is the Vice-President of the Society of St. Sebastian and the Senior Editor of the Journal of Bioethics in Law & Culture Quarterly.