The Practical Case for Opposing Laws that Would Make the Mother of the Child Criminally Responsible for Abortion
Bioethics in Law & Culture Fall 2022 vol. 5 issue 4
Chris Maska, J.D.
Texas Alliance for Life
There is a debate over whether criminal abortion laws should apply to the mother of the child who is aborted. One side argues that mothers, along with their children, are victims of abortion and should not be prosecuted for abortion. The other side argues that since the mother is complicit in the death of her child, the mother should be prosecuted. If those who argue that mothers are victims of abortion are correct, it follows that mothers should not be prosecuted for abortion. However, if those who argue that mothers are complicit in abortion are correct, it does not follow that mothers should be prosecuted for abortion.
The reason for this is that there are practical considerations, due to the unique nature of the crime of abortion, the history of abortion laws in America, and the current legal landscape, that strongly counsel against prosecuting a woman who aborts her child. The goal of the pro-life movement is to end abortion. The movement should support laws that best accomplish the goal of ending abortion. A law that makes the mother of the child a criminal would have the effect of making abortion more likely. It does this by making it more difficult to prosecute abortionists; by diverting resources from legislation that will save lives, and by putting at risk all pro-life legislative achievements. Because of this, laws should not be passed to make the mother of the child criminally responsible for having an abortion whether or not one agrees with the claim that women are not victims of abortion but are complicit in abortion.
Why not the Best Possible Law?
Some might argue that one should always attempt to pass the theoretically best possible law even if it is not enforced or followed. It is true that law does have a teaching function. By making something illegal, the legislature is saying something is wrong. However, no sane legislature attempts to criminalize everything that is wrong for a number of reasons. Just because someone does something wrong does not mean there should be a law against it. Further, enacting a law that is not enforced or followed, results in bad consequences. People become habituated to not following the law. But perhaps more importantly, the primary purpose of law is to change behavior. A law that does not change behavior does not accomplish the primary purpose of law. If a law does not accomplish its primary purpose, perhaps there is another law that would.
Purpose of Laws Against Abortion
A law should be judged by whether it achieves its intended purpose. It is, therefore, important to determine what is the purpose of criminal laws against abortion. The principle reason for laws against abortion is that abortion is the killing of an innocent human being. It is wrong to intentionally kill an innocent human being. The purpose of laws against abortion is to stop the killing of innocent human beings. This purpose is only fulfilled if a law actually decreases abortions. A theoretically perfect law against abortion that does not stop abortion has failed to achieve the purpose for which it was enacted. It would be better to have a law that while not theoretically perfect, actually stopped abortions or at least stopped more abortions than a theoretically perfect law. Further, perhaps after the less-than-perfect law has been in effect for some time and the law’s teaching function has changed public perceptions, it might then be possible to enact the theoretically better law and in time it might also be the practically better law.
What Laws Should be Passed?
In determining whether a particular law should be passed, the first question to be asked is would the law actually decrease the number of abortions. If such a law does not actually decrease the number of abortions, it fails of its intended purpose. What if multiple laws could be passed and each would decrease the number of abortions, but only one law could go into effect. An example of this is the question addressed in this paper: should laws against abortion exclude the mother from criminal responsibility or the law include the mother. A legislature could pass a law making a mother criminally responsible. It could pass a law that mothers were not criminally responsible. But it could not rationally do both. When multiple inconsistent laws could be passed, all of which decrease the number of abortions, the law that should be passed is the law that most decreases the number of abortions because it accomplishes to a greater degree the intent of such laws, which is decreasing abortion.
Why Abortion is a Unique Form of Homicide?
One might say that abortion should be treated just like any other homicide. Anyone who is intentionally involved in an abortion should be prosecuted to the same extent as anyone who is involved in the killing of a person after birth. However, there are a number of reasons why abortion is not just like any other homicide. Abortion is far more difficult to detect than the killing of a born person. This is so because the unborn child may only be known to exist by the mother and those whom the mother tells; the body of the child is easy to conceal, and even if it is proven that an unborn child has died there is the difficulty of proving the child’s death was not a miscarriage. Further, of the two people normally involved in an abortion: the abortionist and the mother, the abortionist has a far greater potential to be involved in additional abortions. If there is a question of which to prosecute the abortionist or the mother, the abortionist should be prosecuted.
Difference Between Abortion and Killing an Adult
If someone was to kill a grown man, it is usually not hard to detect. Killing a grown man is not easy. The body has developed defenses and the man is unlikely to cooperate in his own death. The use of a gun could draw attention, as would a struggle with a knife or a blunt instrument. Assuming that the man is killed and no one witnessed it, it is likely that it will soon be known that the man was murdered. The man’s friends, family, neighbors, and coworkers would notice the disappearance and seek to find him. Further, there would be a large decomposing body that would be hard to conceal. The murder of an adult man is not likely to remain a secret for long.
Compare this to an abortion. The unborn child is easy to kill. The child’s body is not nearly as robust as an adult’s body. In an abortion, there is no loud struggle that would bring people to the scene. The body is also easy to dispose of. Most importantly, who would know that the unborn child had even existed? The mother may have found that she was pregnant by the use of a pregnancy test that she bought at the grocery store. The mother and the abortionist may be the only ones who know of the existence of the unborn child. To convict someone of abortion it is likely that the testimony of the mother or the abortionist will be required. Even if the mother had told the father, a family member, or a friend, or if medical personnel conducted the pregnancy test, their inquiries could be allayed by saying, “I had a miscarriage” Abortion is a very difficult crime to detect and, hence, it is difficult to secure a conviction for abortion.
Difference in Potential for Killing
Abortion normally requires only two people: the mother and the abortionist. There are biological limits to the number of abortions that a mother could have. The abortionist does not have the same biological limits. Certain abortionists have accounted for thousands or tens of thousands of abortions. Abortionists are high on the list of all-time killers who have killed with their own hands. If the intention is to stop abortion, stopping an abortionist from participating in abortions has the potential to save far more lives than stopping a mother from participating in abortions. Hence, it makes sense to design laws so it is easier to prosecute abortionists rather than mothers.
The difficulty of detecting abortion and the fact that the abortionist has a far greater potential for additional killings must be considered when designing laws against abortion. If a law allows the prosecution of both the mother and the abortionist, how will a conviction be obtained? The testimony of either the abolitionist or the mother appears unlikely. Why would either testify as the testimony could be used against him or herself? There is the possibility that the mother might testify if offered immunity from prosecution. Prosecutors can give immunity to a participant in a crime so that other participants in the crime can be convicted when otherwise there would not be enough evidence to convict all of the participants in the crime. Giving immunity is done on a case-by-case basis. The use of immunity makes sense when a lower-level criminal’s testimony is used to convict an individual who has greater criminal responsibility or who is responsible for more crimes. The archetype for this is the mafia foot soldier who is offered immunity to help convict a drug kingpin.
Prosecuting Without Immunity
If both the abortionist and the mother are responsible under the law, the abortionist could truthfully tell the mother, “We are now bound together. If you ever tell anyone about the abortion both you and I could go to jail. Keep this secret.” Now whether or not the statement is true, an abortionist could make that statement. However, if it is well known such a statement is false, it would have little effect.
It is highly unlikely that a mother would want to go straight to the police after an abortion. But a woman may have a religious conversion or experiencing the effects of abortion on herself, she may decide abortion is wrong. Many mothers who have aborted a child come to recognize that abortion is wrong. When this occurred, if the law made both the mother and the abortionist responsible, a woman would face prosecution if she told the police about the crime. As noted above, there is the possibility of seeking immunity from prosecution. This assumes that the mother knows about immunity. But to get immunity, a mother would have to hire a lawyer and have the lawyer negotiate a deal with law enforcement. Bringing the abortionist to justice can risk prosecution of the mother or at the very least it can be expensive.
Prosecuting With Immunity
If mothers are given blanket immunity from prosecution, prosecuting an abortionist becomes significantly easier. In the abortion context, a blanket grant of immunity to the mother makes sense. An abortionist has the potential to be a mass murderer, unlike the mother. Giving the mother blanket immunity destroys the legal bond between the mother and the abortionist. It destroys the leverage the abortionist has over the mother. A mother who had an abortion could go to the police having no fear that she would be charged with the crime of abortion. She would not need to hire an attorney to try to negotiate immunity.
Not only does granting mothers blanket immunity make it easier to obtain convictions and, hence, take more abortionists off the streets. It would also serve to deter people from becoming abortionists. An abortionist would know that every time he or she performed an abortion that the mother might at anytime go to the police without risking criminal liability. Because of this, it is more likely that a would-be-abortionist will not decide to do abortions knowing that conviction is more likely. Hence, both more abortionists will be convicted, and fewer individuals will become abortionists. Further, by focusing on the abortionist instead of the mother, more abortions will be prevented. Abortionists have the potential to be mass murderers.
Further, the face of abortion that the public sees should not be a scared sixteen-year-old girl, but the hardened veteran of hundreds of abortions. Allowing mothers to be prosecuted for abortion will create a very dangerous media atmosphere. A mother is going to be a far more sympathetic individual than an abortionist. The mother may have real difficulties in her life. She may have been abandoned by the father of the child. She may not see how she can emotionally and financially care for her child. She may see the possibility of a bright career being snuffed out. There are many costs to raising a child and they are not easy to bear. Unlike the mother, an abortionist hardly has a sympathetic justification. The abortionist will be a person who kills children for money. If someone has the money, the abortionist is willing to kill. It is much more likely that the public will see an abortion conviction as a good thing if the person convicted is the abolitionist and not the mother. How the public views abortion can have significant effects. Laws that are not supported by the public are often not vigorously enforced and obtaining convictions is difficult. Further, the risk of a backlash against pro-life laws would be enhanced.
The true target for prosecution should be the abortionists because this will save more lives. This can be achieved by giving mothers immunity from prosecution for abortion.
Requirement of Additional Testimony
Further, if a mother could be charged with the crime of abortion, testimony additional to the mother’s would be needed to convict the abortionist. There is an old common law doctrine that the testimony of an accomplice to a crime can only be credited if there is corroborating evidence. In Texas, this doctrine has been codified:
Testimony of Accomplice. A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed: and the corroboration is not sufficient if it merely shows the commission of the offense.
The reason for this is that such testimony is often gained through the promise of immunity. It also might be the case that a participant in a crime may wish to make it appear that another participant was the one chiefly responsible for the crime. The doctrine is a general criminal law doctrine. It applies to all crimes, not just abortion.
In the case of abortion, this doctrine could be a significant obstacle to obtaining a conviction. Prior to Roe, there were a fair number of cases that addressed the issue of whether a mother could be an accomplice to an abortion. A clear majority of these cases found that a mother could not be an accomplice. Because the mother was not found to be an accomplice in these cases, independent evidence was not necessary to secure a conviction in most states.
If laws were to be changed to make mothers accomplices, it would be more difficult to obtain abortion convictions. Due to the secretive nature of abortion as detailed above, it may be difficult or impossible to obtain corroborating evidence to support the mother’s testimony. Without the corroborating evidence, the mother’s testimony would have to be disregarded. The result is that prosecutions would not bring cases and abortionists would keep on operating.
The above analysis needs to be extended because of so-called medical abortions. A medical abortion is an abortion that is accomplished through drugs. The abortion pill RU 486, which induces abortion, often used in combination with misoprostol is an increasingly popular method of abortion. Because of RU 486, an abortion can be accomplished without surgery. Hence, an abortion can occur without an abortionist being present. Still, the mother must obtain the necessary drugs. In states where abortion is illegal, it is highly unlikely that a doctor would write a prescription for RU 486. The prescription would be strong evidence that the doctor had participated in an abortion.
Getting the abortion drugs to the mother requires a supply chain. The most likely type of supply chain would be similar to those for illegal recreational drugs. The two supply chains are not identical but there would be similarities. In both cases, the supply of the drugs would have to be secured. The drug would have to be moved near the buyer. The buyer and the seller would need to identify each other, set up an exchange, and execute the exchange.
In a recent article in the New Yorker, The Post-Roe Abortion Underground, the story of how abortion drugs are brought to Texas and distributed is told. The drugs are bought at Mexican pharmacies. Although, the buyers found this more difficult than expected. Some pharmacies refused to sell large quantities of drugs to them. Since the Mexican Supreme Court has made abortion legal in Mexico, there is probably little that American states that have banned abortion can do on the Mexican side of the border. Once procured, the drugs are then moved into Texas. The difficult part is connecting with buyers. The dealers are afraid they might be set up. Once they are convinced that the request is real, an exchange is arranged for a secluded location.
On the American side of the border, at least in states like Texas that have banned abortion, the illegal trade in abortion drugs can be targeted just as the illegal trade in recreational drugs is targeted. The people who bring drugs into Texas are the equivalent to abortionists. These drug mules and retail sellers have the potential to be involved in the killings of hundreds or thousands. These smugglers and dealers are the choke point in the abortion trade. If they can be stopped, illegal medical abortions can be stopped. Since under Texas law mothers cannot be prosecuted, the dealers will know, like the abortionists, that they could be turned into law enforcement by a woman who they sold to and could face a long prison term. Providing immunity to mothers makes combating medical abortions easier, just as it makes it easier to combat surgical abortions. The goal of banning abortion is best achieved by giving mothers immunity.
More Important Goals than Removing Immunity
Assuming for the sake of argument that someone is not convinced by the above argument, there are other practical arguments for why mothers should be granted blanket immunity. There are more important legislative changes that can be made than removing immunity from mothers and removing immunity risks a backlash that could result in pro-life legislation being repealed.
Most Important Goal - Banning Abortion
Even if someone believes that immunity does not make abortion less likely, one should not expend efforts to remove immunity because there are more important legislative goals to be achieved. The Dobbs decision allows states to ban abortion, it does not require states to ban abortion. In fact, some states have recently passed laws that make abortion legal until the moment of birth, removed requirements of parental notification, and appropriate state funds for abortion. It is much more important to enact laws that make abortion a crime in all states than it is to amend the criminal laws in states that already ban abortion. In America, women have almost never been prosecuted for abortion. Whether or not the laws in question have an explicit limitation against bringing prosecutions against mothers, the laws have been so interpreted. Removing immunity means using resources to amend current laws that are presently stopping abortions.
Further, where pre-Roe laws or more recently enacted laws against abortion have come into effect, they have been tremendously successful in stopping abortions. In Texas, there now no openly operating abortion facilities. It is not just Texas, since Dobbs, in the United States at least 66 abortion facilities have closed. After Dobbs, we have the ability to ban abortion and know how to effectively do it. Legislative resources should be used to spread the success of Texas and other states across the nation. This is the way to make sure more lives are saved.
Legislative Resources are Limited
Legislative resources are limited. It is not easy to get good laws passed and enforced. Firstly, good legislators who are willing to support pro-life legislation need to be elected. Secondly, trained lobbyists need to be ready to present good legislation. Thirdly, the grassroots who helped elect the legislators need to make their voices heard. Fourthly, compelling testimony must be provided before legislative committees. Fifthly, media must be used to generate public support. Sixthly, good legal talent must be ready to defend court attacks on pro-life laws. Getting good laws on the books and operating requires significant resources. Legislative resources should be invested where they can do the most good. To remove resources from spreading abortion bans to more states and defending the legislative challenges to the current bans that are so successful would not be a wise use of resources.
States with Abortion bans need laws to help Change Hearts and Minds
Even in states that ban abortion, there is a greater need to both prevent the repeal of pro-life laws and to enact laws that will help change hearts and minds about abortion than a need to remove immunity from mothers. Changing hearts and minds will always be a principal goal of the pro-life movement. Criminal laws alone are not enough. Theft has always been against the law, but theft occurs in every city, every day. Just having a law does not prevent crime from occurring. If that were the case, once the legislature passed the right law there would be no need for education or enforcement.
Civil laws can help provide education as to the sanctity of life in general and education to worried mothers and fathers about how to be good mothers and fathers specifically. While the state could directly provide education, it could also fund pregnancy help centers and other nonprofits to provide education. Many faced with a pregnancy wonder how they could afford birth and raising children, states could help alleviate these worries by passing laws to provide material assistance for families in need. Such laws can help make abortion unthinkable. Not only do mothers and fathers have a duty to protect their children, but the community also has a duty to help mothers and fathers. With real assistance and support, abortion will look less and less like a viable option.
Result of Advocating Removing Immunity Could be Repeal of Pro-life Laws
Even if for purposes of argument one believed that laws that remove immunity from mothers are more important than laws that ban abortion in states where abortion is legal and laws that help change hearts and minds, there is a third practical argument for why laws should not be amended to remove immunity from mothers. Laws that remove immunity from mothers could spur a backlash against current laws that ban abortion and the passage of laws that seek to ban abortion. It has never been the American practice to apply abortion laws against mothers. In fact, there are only two reported cases that indicate that a mother was indicted for abortion. In a Pennsylvania case, a jury convicted a mother of abortion, but the judge refused to enter judgment against her and the appellate court affirmed the judge's order. In a Texas case, the issue of whether a woman could be an accomplice was raised concerning the conviction of the abortionist. Here the Texas Court of Criminal Appeals, the highest criminal court in Texas found the rule in Texas was that the mother could not be an accomplice. However, for some unknown reason, the mother had been indicted. The Court found in this unusual circumstance the mother’s testimony had to be corroborated. Making mothers liable for prosecution for the crime of abortion is something truly novel. It is not easy to get the public to accept something which is novel.
Even in Texas which recently passed the Human Life Protection Act that makes abortion a felony and the Heartbeat Law which makes abortion a crime after a heartbeat is detected, there have been calls to repeal Texas’s abortion laws. If such legislation is drafted and starts to make it through the initial Legislative hurdles, one can be sure that it will receive plenty of favorable media attention. In the midst of the battle to maintain the current laws, would it really be wise to attempt to remove immunity for mothers? Adding something completely new to the debate, something that has never been the law in this nation does not seem the best course of action at the present time.
We are not the only side that has a legislative agenda and resources. The other side wishes to repeal all pro-life laws. By attempting to ban immunity for mothers it gives the other side an opening to say these crazy pro-lifers want to do something so extreme it has never been in our nation before-they want to criminalize mothers. This is a line of attack that may achieve some traction. It might result in pro-life legislators losing elections. Their opponents might only attack them during the election about criminalizing mothers, but once in office, the opponents might well find that they really believe that rape and incest exceptions are also a good idea and that there should be broad health exception that encompasses all aspects of a woman’s life. The worst that can happen by attempting to remove immunity for mothers is not the defeat of the discrete legislative measure that attempts to remove immunity. The worst that can happen is the defeat of all pro-life laws.
Further, assume that in some states immunity is removed from mothers. Sooner or later there will be a trial of a mother for abortion. As the mainstream media has long demonstrated, they will do everything they can to make abortion look like a good thing. This would be one more reason to change the law on abortion. Perhaps the issue of immunity for women would gain traction. Once a side achieves momentum, as has been said, all pro-life laws could be in danger.
If one really believes that immunity for mothers should be taken away, perhaps the best course is not to try and pass legislation. Perhaps the best course would be to try to educate the public about the position. This itself is no easy proposition. Convicting mothers for abortion is something that has never been done in this nation before. If one were able to succeed in educating the public, then one could attempt to introduce legislation with much less of a chance of a major backlash. But why inject this issue into public debate, which even if pursued as education could have real electoral and legislative consequences? Is not the primary need for education a need to educate the people of this nation that life is sacred and needs to be protected? There are plenty of states that freely allow abortion. Should not the primary target of education be the people of those states? Because attempting to pass legislation that makes mothers liable to prosecution for the crime of abortion places at risk all pro-life legislative achievements, it should not be pursued.
Three Distinct Practical Arguments Defeat Claims for Removal of Immunity
Whatever one may think of a mother’s moral responsibility for the abortion of her child, even if one thinks that she is as responsible for the abortion as the abortionist, this does not mean that laws should be passed to make mothers criminally liable for abortion. Abortion is in several ways a unique form of homicide. It is particularly hard to detect. It is hard to prosecute. Unlike other forms of homicide, abortion requires two participants-the mother and the abortionist or the mother and the abortion drug dealer. The mother may go on to participate in a few more abortions. The abortionist or the abortion drug dealer can go on to participate in thousands of abortions. A law that gives mothers blanket immunity from abortion makes it more likely that an abortionist or an abortion drug dealer will be caught. Knowing this would abortionists and dealers are deterred from becoming abortionists and dealers. Laws that give blanket immunity to mothers make abortion less likely. They save more lives. As saving the lives of unborn children is the primary goal of the criminal abortion laws and the pro-life movement, the pro-life movement should not advocate for the removal of immunity for mothers in the laws that are currently doing so much to stop abortion. The primary legislative goals of the pro-life movement should be to extend pro-life laws throughout the nation so that abortion is a crime in every state and to pass laws that help to change hearts and minds. Because legislative resources are scarce and legislative resources should be used for achieving the principal goal of the pro-life movement-stopping abortion, legislative resources should not be used to remove immunity for mothers. An attempt to remove immunity from mothers does not just risk a discrete legislative defeat, it imperils the whole pro-life enterprise. Removing immunity from mothers is something that has never been done in this nation. Attempting such a novel move will risk the replacement of pro-life legislators with those who will champion abortion. It will risk changing public opinion. It could result in states that now ban abortion becoming states that sanction abortion. Even if one truly believes a mother is as culpable as an abortionist, one should not attempt to pass legislation removing immunity from mothers.
 There are cases where a mother does not consent to an abortion and is forced to go through an abortion. This thoroughly evil violation of both mother and child is not addressed in this paper.
 Legislatures do at times pass directly conflicting laws. When this happens only one law can be enforced. The canons of statutory interpretation determine which law goes into effect. However, the key point is that only one of the laws can go into effect.
 The infamous late-term abortionist Dr. Kermit Gosnell was responsible for over 16,000 abortions. Kermit Gosnell: Philadelpia’s abortion “monster” revives US debate, Neal Razell, BBC News June 27, 2013. bbc.com/news/magazine-23004693. Dr. Bernard Nathanson was responsible for over 60,000 abortions. Bernard Nathanson, Deeper into Abortion, New England Journal of Medicine, Nov. 28, 1974 nejm.org/doi/full/10.1056/NEJM197411282912213
 Tex. Code of Crim. Pro art. 38.14, Zamora v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013)
 State v. Barnett, 437 P2d 821 (1968).
 Roe v. Wade, 410 U.S. 113 (1973).
 34 ALR 3d 1970, Woman Upon Whom Abortion is Committed or Attempted as Accomplice for Purposes of Rule Requiring Corroboration of Accomplice Testimony, Jonathan M. Purver, LLB.
 Id. at 860.
 One obvious difference is that there is a much more limited market for abortion drugs than for recreational drugs. The market for abortion drugs is limited to the number of pregnant mothers who wish to kill their children. Recreational drugs are targeted to a much larger segment of society and are more frequently used.
 Stephania Taladrid, The Post-Roe Abortion Underground, A multigenerational network of activists is getting abortion pills across the Mexican to Americans, The New Yorker, October 10, 2022.
 Dobbs v. Jackson Women's Health Organization, No 19-1392, 597 U.S.___, (2022).
 Kristen Hwang, “Newson signs abortion protections into law” Cal Matters, September 27, 2022. calmatters.org/health/2022/09/california-abortion-bills/
 Mansur Shaheen, “At least 66 abortion clinics in 15 red states have scrapped procedures since Roe v. Wade was overturned.” Daily Mail, October 6, 2022.
 Commonwealth v. Weible, 45 Pa. Super Ct. 207 (1911)
 Crissman v. State, 245 S.W. 438 (Tex. Crim App. 1922)
 Texas Health and Safety Code, chapter 170A.
 Texas Health and Safety Code, chapter 171, subchapter H.
 “Beto O’Rourke Says He’ll Repeal Texas’ Ban if Elected Governor” 5 NBC DFW, June 27, 2022.