One Untrue Thing
Life after Roe.


Anna Quindlen’s column in Newsweek this week is titled “How much jail time?” and argues that pro-lifers are dodging the issue of jail time for women who seek abortions. She concludes: “there are only two logical choices: hold women accountable for a criminal act by sending them to prison, or refuse to criminalize the act in the first place. If you can’t countenance the first, you have to accept the second. You can’t have it both ways.”

Knowing Quindlen isn’t the first and won’t be the last to ask the question, National Review Online asked a group of pro-life experts: Is “How much jail time?” a key question pro-lifers ignore when discussing abortion and life after Roe?

Hadley Arkes
Once again we find ourselves twitted by the partisans of abortion to show our own seriousness by our willingness to punish in the severest way the taking of an innocent life. Is the implication that, if we use a gentler hand, we must not really think that human beings are being killed in these surgeries? It has apparently escaped the notice of Ms. Quindlen that the law does not need to invoke the harshest penalties for the sake of teaching moral lessons. The point may be made at times with gentler measures. In the tradition of legislating on abortion, a certain distinction was made out of prudence: On the one hand there may a young, unmarried woman, who finds herself pregnant, with the father of the child not standing with her. Abandoned by the man, and detached from her family, she may feel the burden of the crisis bearing on her alone, with the prospect of life-altering changes. On the other hand, there is the man trained in surgery, the professional who knows exactly what he is doing — he knows that he is destroying a human life, either by poisoning a child or dismembering it. And in perfect coolness and detachment, and at a nice price, he makes the killing of the innocent his office-work. Certain women may indeed be guilty of a callous willingness to destroy a child for the sake of their own self-interest. But the law makes a prudent, tempered choice when it makes the abortionist the target of its censure and brings solely upon him the weight of the punishment.

– Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

Dorinda C. Bordlee
“How much jail time?” is a contrived question that is both deceptive and desperate. It is deceptive because it ignores the fact that the American pro-life movement has consistently considered the woman as the second victim of abortion. The abortion ban enacted in South Dakota, as well as the abortion bans with post-Roe activation clauses enacted in recently in Louisiana and several other states, explicitly state: “Nothing in this section may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.”

The question “How much jail time?” is also a desperate attempt to distract the public from what they have learned about the crime against humanity known as partial-birth abortion, in which a child’s brain are suctioned out while only inches from complete birth, and about the most common methods of abortion, which involve ripping the unborn child from the womb piece by piece.

A more appropriate question is: How much jail time we should impose on abortion providers who financially benefit from the plight of women who are abandoned by those who should be caring for them and their unborn children? How much jail time is appropriate for abortionists who expose women to startling increased risks of breast cancer, problems with future pregnancies, and a three to six times increased risk of suicide? How much jail time for the destroying the lives of countless women and children?

– Dorinda C. Bordlee is executive director of the Bioethics Defense Fund.

Marjorie Dannenfelser

What an ingenious strategy from the National Institute for Reproductive Health and their friend Anna Quindlen. Only the best inside-the-Beltway political gurus could route out such a good fear and panic-tinged wedge issue. But alas, their complete cognitive dissonance when it comes to understanding abortion opponents will defeat them. They hope to prop up the stereotype of abortion opponents as harsh, uneducated, unfeeling Neanderthals who either want to punish women or who are legal idiots not willing to accept the consequences of their position.

But “Just pray for them” is exactly what will continue to emanate from the “national conversation” they seek to ignite. Compassion for mother and child will continue to dominate YouTube and any other outlet where Quindlen or her friends hope to “out” abortion opponents. My guess is that as soon as this happens the “conversation” will go mute.

The fact of the matter is that compassion for women before abortion was legal and compassion for them after unborn protections are enforced will drive the law. The focus of such laws is on protection, not punishment. Women were not punished by the legal system before 1973’s Roe v. Wade decision and there is absolutely no drive to punish her now. While the position may be counterintuitive to some, it is clearly a uniquely American case of handling a delicate and tragic situation with sensitivity.

– Marjorie Dannenfelser is the president of the Susan B. Anthony List.

Pia de Solenni

Anna Quindlen asks a difficult question in hopes that pro-life advocates won’t answer with the reality, namely the scientific fact that human life begins at conception. Pro-life advocates generally stay away from the question of how much time a woman should serve for having an abortion because they’re fighting a battle that is both moral and political. Quindlen wants a strictly legal battle, no morals please.

However, that tends to make us uncomfortable since we recognize the fact that many girls and women have abortions because they feel as if they have no choice, especially when health and legal authorities fail to tell them otherwise. Laws are intended, in part, to show people just how far they can go before they’ve gone too far. Without these guidelines, anything goes. If the law were to identify abortion for what it is, most people would be very uncomfortable to face that reality. So long as we allow red herrings, not unlike Quindlen’s question, we continue to hide the truth that abortion is murder. Like murder, circumstances and intention play a role; but they do not hide the reality that an innocent human life has been destroyed.

Pia de Solenni is based in Philadelphia, Pa., and is the head of Diotima Consulting.

Joseph Dellapenna
Anna Quindlen concludes her article by arguing that one must either hold women criminally accountable for an abortion or refuse to criminalize abortions. She also insists that to consider any other option would be to infantilize women, assigning them to a subordinate place to the men who do the abortion or the men who pressure them into having the abortion. This is an appealing argument, but it evades a number of hard facts that demonstrate that the matter is not so simple as her reasoning suggests.

Until less than a century ago, abortion under the best of circumstances was an extremely dangerous activity and under less than ideal circumstances was tantamount to suicide. As a result, a strong tradition arose that women were victims of the abortion and not perpetrators. Moreover, 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. This problem was also solved by treating the woman as a victim rather than as a co-criminal. Thus none of the laws overturned by Roe v. Wade (that is, the abortion laws of every state) treated the woman as a criminal.

Should this tradition be carried forward if Roe v. Wade were overturned? Usually abortion is safe for the woman today and the woman chooses to have the abortion, rather than having it forced upon her. The special cases of women (whether adults or minors) who are literally forced into an abortion could perhaps be dealt with by special legislative provisions. Yet the situation is not so simple. Significant evidence led one sociologist to conclude that “the attitude of the man is the most important variable in a woman’s decision to have an abortion.” Sorting these questions out could lead to the conclusion that enough doubt exists that a woman should not be sent to prison for undergoing an abortion.

Beyond the woman herself, there remains the abortion industry — a billion-dollar-a-year industry that some, at least, see as preying on women nearly as much as it preys on unborn children. Despite all the changes in the realities of abortion over the last century, it remains as true today as it was 200 or 400 years ago that going after the woman seems less important going after the industry. It is no more inconsistent to criminalize the abortionist and not the woman having the abortion than it would be to decriminalize the use of certain recreational drugs (say, marijuana) while vigorously pursuing the drug dealers — even though most drug users exercise a significant element of choice in using the drug.

– Joseph Dellapenna is professor of law at Villanova University School of Law and author ofDispelling the Myths of Abortion History.

Clarke D. Forsythe
Contrary to the pervasive myth that women were prosecuted for abortion before Roe, consistent state abortion policy for a century before Roe was not to prosecute women. Abortionists were the exclusive target of the law. That was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of abortion, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

In fact, the irony is that in nearly all of the reported court cases explicitly addressing the issue of whether a woman was an accomplice to her abortion, it was the abortionist (not the prosecutor) who pushed the courts to treat the woman as an accomplice, for the obvious purpose of undermining the state’s criminal case against the abortionist (including the abortionist Ruth Barnett when Oregon last prosecuted her in 1968).

Leslie Reagan, in her 1997 book When Abortion Was a Crime, admits that states did not prosecute women for their abortions and concedes that the purpose behind that law was not to degrade women but to protect them.

The wisdom of not prosecuting women was based on extensive practical law enforcement experience in many states, over many years. It will certainly be influential with prosecutors and state policy makers when Roe is overturned, and that should be the policy of legislators who are interested in the effective enforcement of abortion law.

But Quindlen’s strawman implicitly relies on another myth — that “overturning” Roe will result in the immediate re-criminalization of abortion. In fact, if Roe was overturned today, abortion would be legal tomorrow in at least 43 states, if not all 50. That’s because almost all pre-Roe laws have been repealed. There will be no prosecutions of abortionists unless the states pass new laws after Roe is overturned.

– Clarke D. Forsythe is an attorney and president of Americans United for Life.

Matthew J. Franck

Anna Quindlen is right that most pro-lifers haven’t given much thought to the question “How much jail time?” for women who have abortions. That’s because the Supreme Court hasn’t let us get to the point where we need to consider it; we’ve been busy making the arguments that would free us to do so.

Quindlen dares us to treat women who have abortions harshly, saying logic requires it. Like others who employ this “gotcha,” she is guilty of the fallacy of complex question — treating a compound question as though it were simple. The proper approach (after Roe) is to ask, what policy would reduce the number of abortions as much as possible now? For 34 years, American women have been taught that their unborn children have no claim on them — mere lumps of tissue to be discarded if inconvenient. If the law is to recover its sanity, it will have to proceed by degrees, forbidding what it can and enforcing its prohibitions by the mildest punishments sufficient to achieve the desired results. Consciousness of abortion’s wrongness will not be rebuilt overnight. It is plausible that we could begin by reducing the number of abortions in America by 90 percent with zero jail time for any woman who obtains one. In a more just society a generation or two after Roe, further reductions might require stronger laws. But by then, such laws would once again be tolerable and recognized as just. Which is to say, the law must be prudent, not the product of sophomore logic.

– Matthew J. Franck is professor and chairman of political science at Radford University and a regular blogger at NRO’s “Bench Memos.”