As everyone who hasn’t been in a coma knows by now, Donald Trump said on Wednesday that “there has to be some form of punishment” for women who abort. (His overworked Director of Retractions immediately issued one clarification, and then another.) Trump’s misguided impulse is contradicted by state and federal policy for the past century and flies in the face of the long-held policies of state and national pro-life organizations.
The almost uniform state policy before the Supreme Court’s 1973 decision in Roe v. Wade – which legalized abortion in every state, for any reason, at any time of pregnancy – was that abortion laws targeted abortionists, not women. In fact, the states expressly treated women as the second “victim” of abortion. Abortionists were the target of the law.
That longstanding state policy, the product of experience over centuries, was based on three principles: The goal of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is directly counterproductive to the goal of effective enforcement of the law against abortionists. Since time immemorial, the law has recognized that male coercion, abandonment, or indifference has been at the center of most abortions.
Going back as far as English and colonial law, the criminal law classified those involved in crimes as principals and accomplices. A principal is “the person whose acts directly brought about the criminal result.” An accomplice aids or abets the crime. But the states did not treat a woman who had an abortion as either a principal or an accomplice. As the Oregon supreme court held as late as 1968, the abortionist commits the act, and the woman aborted is the object of that act: “A reading of the statute indicates that the acts prohibited are those which are performed upon the mother rather than any action taken by her. She is the object of the acts prohibited rather than the actor.”
The irony is that it was abortionists (like the abortion-rights cult hero Ruth Barnett, who was last prosecuted by Oregon in 1968) who, when prosecuted, sought to haul the woman they aborted into court to protect their own hides. If the court treated the woman as an “accomplice,” she could not testify against the abortionist, and the case against the abortionist would be thrown out.
In the past century, a legal scholar has pointed out, there were “only two cases in which a woman was charged in any State with participating in her own abortion”: one in Pennsylvania in 1911 and one in Texas in 1922. In the 1911 case, the trial court threw out the charge and the Pennsylvania superior court concurred, stating that “in the absence of clear statutory authority, ‘the woman who commits an abortion on herself is regarded rather as the victim than the perpetrator of the crime.’”
Before Roe, as many as 20 state statutes technically made it a crime for the woman to participate in her own abortion. But these statutes were not enforced or applied against women. There is no record of any prosecution of a woman as an accomplice even in those states.
And the state policy applied to women who self-aborted. As legal scholar Paul Linton has pointed out, “although more than one-third of the states had statutes prohibiting a woman from aborting her own pregnancy or submitting to an abortion performed on her by another, no prosecutions were reported under any of those statutes.” Based on his review of the 50 states, Linton concluded that “no American court has ever upheld the conviction of a woman for self-abortion or consenting to an abortion and, with the exception of [the Pennsylvania case from 1911 and the Texas case from 1922], there is no record of a woman even being charged with either offence as a principal or as an accessory.”
Likewise, before Roe, courts in a handful of states questioned whether the aborting woman might be a legal conspirator. But even in these states, the issue in the recorded cases was not the woman’s guilt — no woman was charged or was a co-defendant in the cases – but the admissibility of evidence against the abortionist. No woman was actually prosecuted.
Some states also had statutes prohibiting solicitation of abortion – based on the general principle that solicitation of any crime is a crime – but these were evenhandedly applied to men and women. In her book When Abortion Was a Crime, pro-abortion-rights historian Leslie Reagan acknowledged that states did not prosecute women for their abortions; that women did not face criminal liability as principals, accomplices, conspirators, or solicitors; and that the purpose behind that law was not to degrade women but to protect them.
The claim that women will be jailed for abortion when Roe v. Wade is overturned rests on a second myth: that “overturning” Roe will result in the immediate re-criminalization of abortion. But if Roe were overturned today, abortion would be legal well into the second trimester in at least 42 or 43 states, and probably all 50 states, tomorrow — for the simple reason that nearly all of the state abortion prohibitions either have been repealed or are blocked by state-court versions of Roe.
Pro-life legislators and pro-life leaders do not support the prosecution of women.
Thus, the wisdom of not prosecuting women was based on extensive practical law-enforcement experience in many states, over many years. That experience will certainly be influential with prosecutors and state policymakers when Roe v. Wade is overturned. And that should be the policy of legislators who are interested in the effective enforcement of abortion law.
Obviously, none of this is new. These state policies were settled, and reaffirmed time and again, by the 1960s. They were clear at the time of Roe. They were presented in detail to Congress in hearings on a constitutional amendment on abortion in 1983. They were covered in a number of law-review articles since then. And Joseph Dellapenna covered them in his encyclopedic 2006 treatise, aptly named “Dispelling the Myths of Abortion History.”
Pro-life legislators and pro-life leaders do not support the prosecution of women and will not push for such a policy when Roe is overturned. (Obviously, like Trump, any particular legislator can spout off about his or her idiosyncratic ideas.) This is demonstrated by federal abortion regulations enacted in the past 20 years — such as the federal partial-birth-abortion ban (2003) and the Unborn Victims of Violence Act (2004) – in which women are expressly excluded from any possible prosecution. To avoid any ambiguities, recent abortion bills in Congress — including the Pain-Capable Unborn Child Protection Act, the Born-Alive Abortion Survivors Protection Act, and the Prenatal Nondiscrimination Act (PRENDA) — have also expressly excluded women.
Trump’s comment has undermined the long, hard work of pro-life leaders over the past four decades — leaders who, in the face of false charges by abortion-rights advocates, have sought to make clear that they oppose prosecution of women who abort and that that opposition is far from arbitrary but rests on the uniform state policy before Roe. And what’s most galling is that a person like Trump who has supported abortion, and abortion organizations, and pro-abortion candidates for decades, and has such crude, flippant, ill-formed opinions, should suddenly claim to speak for pro-life Americans. Bill Clinton, who reportedly urged Trump to run, must be laughing minute by minute.
– Clarke D. Forsythe is the acting president of Americans United for Life Action, where he has been a lawyer for 31 years, and the author of Abuse of Discretion: The Inside Story of Roe v. Wade.