Don’t Prosecute Women for Abortion

R ecently, Right to Life of South Dakota and the Catholic Church were in the surprising position of joining with the American Civil Liberties Union and the American College of Obstetricians and Gynecologists to defeat a bill in South Dakota’s state legislature restricting abortion. Why? Because the bill would have criminalized women who have abortions, not just physicians or others who perform or facilitate them.

South Dakota was the latest flashpoint of an ongoing debate that has shifted from the theoretical margins to the practical center of pro-life discourse: Whom do we punish for abortion? Dobbs permits states to pass legislation restricting abortion, but the federal government’s lax posture toward the abortion pill, mifepristone, has limited states’ ability to enforce its laws against anybody but mothers. Pro-lifers must seek new strategies at the state and federal level to defend unborn children, but they must do so in a way that evinces genuine compassion for women in need.

Several pro-life groups and more prominent activists are vocalizing support for penalizing women directly for abortion, a view long promoted by so-called “abortion abolitionists.” Seth Gruber, founder of the “White Rose Resistance” nonprofit and a pro-life activist, has promoted this approach, criticizing other pro-life groups who disagree. Abby Johnson, the former Planned Parenthood executive whose conversion story was the focus of the movie Unplanned, agrees. Johnson has also been one of the most prominent and vocal critics of those who opposed the recent South Dakota legislation.

Penalizing women for abortion is, in my view, deeply misguided. There are two main arguments its proponents tend to make: that women who have abortions are not victims, but themselves perpetrators of a crime; and that it is wrong for state laws to treat abortion differently from other forms of murder.

First, there is a non-negligible number of women who are coerced into abortions they do not want. Research from the Charlotte Lozier Institute finds that 24 percent of women characterize their abortions as “unwanted” or “coerced.” But beyond cases of genuine coercion, based on my interactions with women who have had abortions, I reject the notion that there is a clear binary between guilty selfishness and innocent victimization. To put it simply, human motivations are complicated. Some measure of selfishness and pressure impacts almost every woman considering abortion.

Are there women who are entirely selfish in their choice to have abortions? I am sure there are. But I judge it is preferable to err on the side of compassion. Such a posture acknowledges that every woman who has had an abortion — whether selfishly or under coercion — has tremendously wounded her own nature, in addition to ending the life of her own child. Separating the worthy from the unworthy seems nearly impossible and unhelpful.

Furthermore, punishing women for abortion puts the pro-life movement’s “frontline responders” — pregnancy centers, church-based ministries, clinics — into an untenable situation. It would be impossible for such groups to maintain public credibility in offering love, compassion, and help to those in need, while the movement’s politicians simultaneously call to prosecute the very same women they purport to love. The political fallout from such perceived hypocrisy would also be disastrous, making efforts to punish women impossible to sustain — even in deep red states — and ultimately counterproductive for the goal of saving lives.

The abortion abolitionist view also betrays a lack of understanding of the law. A jurisdiction’s laws can offer formal encouragement and taxpayer funding on the one hand, or severe criminal punishment on the other, with a spectrum of positions in between. Legislators can prudently contour the law to bring about desired results in a variety of ways. Not every bad thing deserves criminal prosecution of all parties, and not every good thing deserves state promotion and funding.

From a perspective of ethics and justice, I believe that legalized abortion denies basic humanity and equality to a whole segment of the human population. But the need to prohibit abortion does not normatively require a political community to adopt the exact same posture toward abortion that it applies to other forms of murder.

Recognizing that many women who seek abortions are subject to serious pressures and even coercion, it is reasonable to focus enforcement efforts against the persons performing abortions or providing abortion drugs. Doctors and suppliers of abortion pills do not face any of the pressures that the women involved often face. They are going out of their way to break the law, and, in many cases, they’re profiting from it.

However, the abolitionist South Dakota legislators who introduced the bill to penalize women did point out a serious problem: the current impossibility of stopping illegal mifepristone abortions when women cannot be penalized. If a woman in Texas mail-orders abortion drugs from a “shield law”–enacting blue state like California, or from a foreign country, Texas prosecutors can’t reach the suppliers in those jurisdictions. Texas also cannot stop shipments of the abortion pill interstate or internationally into the state. If the woman obtains abortion pills, takes them, and has the abortion, Texas cannot prosecute or penalize her, as its laws exclude her from civil or criminal liability. Because of this dynamic, among other reasons, abortion numbers in some abortion-restricting states have actually increased since Dobbs.

How do pro-lifers address this problem? President Trump has so far refused to enforce the Comstock Act, the Ulysses Grant–era law that outlawed the interstate shipment of abortifacients. In 2022, President Biden’s Office of Legal Counsel issued a memo on the subject to stake out the government’s position that Comstock is unenforceable. OLC memos are customarily binding on the executive branch unless and until they are revised.

Pro-life groups have aggressively pushed the Department of Health and Human Services and the Food and Drug Administration to speed up the review of mifepristone to reinstate stricter health and safety restrictions around it, but there has been less urgency to get the Department of Justice to reassess the matter of Comstock. There have been no letters or statements to that effect from the Congressional Pro-Life Caucus, nor any letters from the House or Senate Judiciary Committees to reassess the 2022 OLC memo. Republicans might view the matter as politically unattainable due to Trump’s unwillingness to touch the question of abortion pills. But Comstock’s anti-abortion provisions remain enforceable: This issue should be a greater focus of pro-life lobbying.

While protection of unborn children is imperative, pursuing criminal punishments for women would be extraordinarily imprudent. While state and federal action is needed to defend the unborn, criminalizing women in such a vulnerable position is no way to address the problem.