Some pro-life advocates evade the question, “How should a woman who commits abortion be punished if abortion were made illegal?” because the pro-life purpose or position is not to judge or punish women in crisis situations — but rather to “preserve the life of the child, to extend compassion, and to provide any emotional, spiritual, and physical support needed.”
Answering this question objectively does not pose any moral dilemmas or contradictions to abortion abolitionists because how one decides to punish the one who commits the act of abortion in no way lessens what abortion is—the taking of innocent human life. No matter what reasoning one employs to justify the act or what method one chooses to accomplish the act, the result of an induced abortion is always a dead baby and a trail of brokenness.
Abortionists ask: If abortion is murder, then should a woman who commits abortion be punished as a murder? They also argue that if an abortion abolitionist does not agree that a woman should be punished as a murderer, then his or her argument about abortion is inconsistent.
Abortionists have it wrong. Abortion advocates should not allow themselves to be pushed into a corner by conceding that every act of abortion be punished the same. For every other crime circumstances are considered. Even if the penalty for abortion were to be something less than the punishment for a standard homicide, it does not mean that abortion is a less heinous crime, or that fetuses are less valuable humans. Some states have more severe penalties for killing police officers, but this does not mean killing average citizens is less heinous or average citizens are less valuable.
Abortion advocates must agree that abortion at every stage of pregnancy should be made a criminal offense, with exceptions to preserve the life of the mother. In only this instance, abortion is saving one life instead of losing two. This is the standard historical position and it is consistent with the pro-life position that life begins at conception and the taking of that life during any stage of pregnancy is wrong.
To answer the question of how abortion should be punished, I will refer to the history of abortion in this nation. Abortion has not always been legal. There was a span of time in this nation when abortion was illegal. Historically, women were not imprisoned for having abortions—not so much because abortion was not thought to be heinous, but because states found that it was “almost impossible to produce the evidence necessary to convict. Pregnancy was hard to confirm; there was almost never a corpse or witness, and there was always a great deal of jury sympathy for desperate and abandoned women.” Therefore, most states chose to place the bulk of criminal liability on abortion doctors in an effort to dissuade the practice.
Therefore, abortion doctors, the ones actually committing the ACT of murder, were pursued and punished for the crime of abortion. Society has usually seen the woman as the lesser—or that there were two victims of abortion—the mother and child.
Unless she was a repeat offender, the courts and jury of peers often extended the woman mercy and compassion because most often the decision to abort was based on lies and misinformation being told to her by the abortionist/physician, or she made the decision under extreme pressure or duress (pressure from the father of the child or family members).
In every other instance of murder, whoever commits the act of murder bears the punishment specified under law. In the case of abortion if the law properly labeled that murder — the individual to be punished would be the physician/abortionist.
Dellapenna notes that a legal focus on the abortionist rather than the woman is necessary in these cases because the law does not allow the conviction of someone on the basis of uncorroborated testimony of an accomplice.
“Courts even in the nineteenth and twentieth century justified continuing to treat a woman as a victim rather than a participant in the crime on the basis that one cannot consent to a crime against oneself,” he wrote in an email message. “This is akin to allowing a drug user to go free in order to convict a drug dealer.”
Dellapana said it is likely a better policy for abortion opponents to reject criminal punishments for women who undergo abortion. “This was the position, by the way, of Susan B. Anthony, Tennessee Claflin, Elizabeth Cady Stanton, Victoria Woodhull, and nearly all the other nineteenth century feminists,” he said.
Some possible ways of implementing punishment if abortion were made illegal would be of course to give the more severe punishment to the abortionist or the one profiting off the abortion practice. He or she would have a much greater understanding of what abortion actually is, and what it does to a developing fetus.
The lesser punishment should be given to the woman guilty of inducing abortion “with increasing severity for repeated offenses.” Nonetheless, history shows that it has been difficult to generate material evidence sufficient to convict women of the crime; therefore, “It may be appropriate to offer the woman impunity or a lesser charge in exchange for testimony against the abortionist.”