And it will disastrously harm the public standing of the pro-life cause.
Last month, I wrote a piece for National Review about an unsuccessful effort in South Dakota to pass legislation that directly penalized women for abortions. As my piece was being published, Tennessee introduced legislation that would have gone even further, allowing Tennessee’s homicide penalties, including the death penalty, to be applied to women who have abortions. I continue to believe that directly prosecuting women for abortion is a bad idea that compromises pro-life witness.
The piece prompted responses from other pro-lifers alleging that an unwillingness to prosecute women evinces a lack of dedication to ending abortion. But the problem with these arguments is an overconfidence in how these laws would actually stop abortions from happening. In addition to compromising the pro-life movement’s posture of compassion, penalizing women directly for abortion simply would not work, because it would be almost impossible to obtain the evidence necessary to get convictions.
So-called abortion “abolitionists” or “equal protection” advocates, who favor directly penalizing women for abortion, think of themselves as the hard-nosed realists in the debate. They characterize their opponents as not genuinely wanting to end or “abolish” abortion for fear of losing public respectability, or out of wrong-headed soft-heartedness toward women who choose to kill their children.
The situation is straightforward, as they present it: Red-state women mail-order mifepristone, and prosecutors in red states cannot reach the doctors or pharmacists supplying mifepristone from “shield law”-enacting blue states or foreign countries. The only person within the jurisdictional reach of law enforcement and prosecutors are the women within the state having abortions. Thus, women in red states can still have abortions within a kind of “mifepristone loophole.” If pro-lifers refuse to close the loophole through legislation to prosecute women directly, the argument goes, then they are unwilling to end abortion.
This argument might have more weight if laws punishing women directly would work. But they would be tremendously difficult to enforce. The task of identifying a woman who might have had an abortion, building a case against her, and successfully prosecuting her, is almost impossible.
Let us suppose Tennessee had improbably passed legislation allowing such prosecutions, and let’s play out what would happen. A woman in Knoxville realizes she is pregnant. She goes online, video-chats with a doctor or nurse practitioner, and gets abortion pills shipped to her from California. The pills arrive at her house. She ingests them, and the baby dies. What part of that transaction can police detect, when the process involves no witnesses within Tennessee’s jurisdiction?
States do not have constant surveillance over the woman’s phone or internet usage. They can’t develop enough evidence even to get a warrant for such information. As long as the woman does not tell anyone about the abortion — or simply tells people that she had a miscarriage — there will be no witnesses to tip the police off. The only way to gather evidence would be if her partner, family, or friends report her to the police, a fraught proposition where police could be relying on uncorroborated, “he-said-she-said” whispers.
This situation would be far more difficult to enforce than was the situation in pre-Roe v. Wade, pre-mifepristone America. Americans United for Life’s Clarke Forsythe has written that, as is the case today, state anti-abortion laws in effect prior to Roe penalized doctors, not women, for abortions. When doctors were performing clandestine surgical abortions, there would be at least a few local witnesses: the woman herself, and whatever nurses or other assistants the doctor had. Also, in the pre-Roe context, several women would be going to one physician for abortions, allowing prosecutors to build a case and focus on compiling evidence pointing to one person. This would not work today, where abortion drugs are disbursed to a wide range of more or less random women with no connective thread for local investigators to follow.
The only stable way to detect an abortion, possibly, is if a woman goes to an emergency room due to complications from her mifepristone abortion. The highest estimate of complications from mifepristone comes from the recent Ethics and Public Policy Center review of mifepristone insurance claims, which indicates that nearly 11 percent of women have a serious adverse event from mifepristone. Fewer than 5 percent of mifepristone abortions resulted in an ER visit.
But even then, it’s nearly impossible to distinguish mifepristone abortion complications from those resulting after an unintentional miscarriage. And good luck getting hospitals to testify against such patients: A state might need to pass additional legislation to force hospitals to report such incidents (assuming they could be detected and distinguished from miscarriage), as is the case in most states with reporting gunshot wounds or other events that concern public safety.
And even if police could detect evidence of an abortion, could they prove it in court beyond a reasonable doubt, in a fashion that convinces a jury and leads to conviction? Can they establish that the woman ordered, received, and (most critically) ingested mifepristone? That mifepristone caused the baby’s death, rather than some other cause resulting in miscarriage? In sympathetic cases where a woman is struggling with poverty or pressures from a partner (a large percentage of abortions), will juries vote to convict? And given all these difficulties, will police or district attorneys expend the manpower necessary to pursue such claims?
If any individual prosecution cannot yield affirmative answers to all of those questions, it will not result in a conviction. I doubt that almost any case could thread that needle.
In short, I refuse to let the “abolitionist,” “equal protection” argument claim a high ground of hard-nosed realism. I agree that we need to close the “mifepristone loophole” in red states. I want state legislatures to explore every tool in the toolbox: targeted civil proceedings, aggressive focus on traffickers or other men coercing women into abortions, and mandating that internet service providers block local access to abortion-supplying websites within red states. Above all, I want to exert maximal pressure on the Trump Department of Justice to revisit the possibilities of applying the Comstock Act to restrict interstate shipments of abortifacients.
But criminally prosecuting women will not stop abortions in red states. And in the meantime, it will disastrously harm the public standing of the pro-life cause, leading to political and policy defeats (and, thereby, more deaths of unborn children) down the road.
Editor’s Note: A prior version of this story incorrectly asserted that the bill language penalizing women directly for abortion had been withdrawn.