Why Don’t We Punish Women Who Have Abortions?

During a recent town hall forum, Republican presidential candidate Donald Trump was asked by host Chris Matthews if he thinks there should be “some form of punishment” in the event of a ban on abortion. Trump said, “For the woman? … Yeah.” He added that the punishment in question would “have to be determined.”

The comment was quickly condemned by both those who support abortion and those who oppose the killing of the unborn. Within hours Trump released a statement reversing his position, saying, in part:

If Congress were to pass legislation making abortion illegal and the federal courts upheld this legislation, or any state were permitted to ban abortion under state and federal law, the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman.

Why Was Trump’s Initial Answer Wrong?

Because abortion has been legal throughout the country for two generations, many pro-lifers have not had to seriously consider the question of why women should not be held criminally liable for having an abortion.

Before we address that question, though, we should first ask whether women who had abortions were treated as criminals prior to the Roe v. Wade decision. The short answer: No, they were not.

Clarke Forsythe, president of Americans United for Life and one of the premier legal scholars on abortion laws in the United States, explains that before the Roe case, individual states not only targeted abortionists but also treated women as a victim of the abortionist:

[T[he almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second "victim” of abortion; state courts expressly called the woman a second "victim.” Abortionists were the exclusive target of the law.

[…]

This political claim [tha[that women were jailed before Roe and would be jailed if Roe falls] not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.

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Joe Carter
Joe Carter is an editor for The Gospel Coalition and the co-author of How to Argue Like Jesus: Learning Persuasion from History’s Greatest Communicator.