Should a Woman Be Punished for Having an Abortion?

On Wednesday Republican Presidential candidate Donald Trump made waves in the mainstream media (even by Trump standards) when he took part in the following exchange with MSNBC’s Chris Matthews:
MATTHEWS: Do you believe in punishment for abortion, yes or no, as a principle?
TRUMP: The answer is that there has to be some form of punishment.
MATTHEWS: For the woman.
TRUMP: Yeah, there has to be some form.
MATTHEWS: Ten cents? Ten years? What?
TRUMP: I don’t know. That I don’t know. That I don’t know.
Don’t punish the woman?
Amid the backlash over Trump’s answer, many pro-life advocates said that they would not punish women who have abortions but punish only the abortionists. Trump himself later said,
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. The woman is a victim in this case, as is the life in her womb.
I don’t think we can simply say the woman has suffered enough from the abortion itself and doesn’t need to be punished. We would never say a mother who drowned her child in the bathtub had suffered enough from watching him die and so shouldn’t be punished. No—if she knew it was wrong and chose to do it anyway, punishment would be deserved.[1] After all, isn’t it unfair that, in many states, men or women who kill a wanted fetus are legally punished? Most people did not consider it outrageous when Scott Peterson was convicted in 2004 of two counts of murder for the death of his wife, Laci, and their unborn son, Conner. So why wouldn’t we charge Laci with committing a crime if she were to kill her own child under the same circumstances? It is precisely the question of circumstances that makes it difficult to answer whether or not a woman should be punished for obtaining an illegal abortion.
Even if pro-life advocates did not believe women should be punished for choosing abortion, that would not disprove the pro-life position. Inconsistent people can still be right. Prior to the Civil War, states that outlawed slavery still did not give black Americans the same legal protections as whites (e.g., blacks could not use white public facilities).
The fact that some laws failed to treat black Americans as equals did not invalidate other laws that did treat them as equals (such as bans on slavery). Likewise, laws that fail to treat the unborn as equals in one respect (such as laws that do not severely punish people who kill the unborn) would not invalidate other laws that did treat the unborn as equals (such as abortion bans).[2] I believe that pro-lifers can give a consistent and compelling answer to this objection.
Answering a contentious question
When I am asked about how women who choose illegal abortions should be punished, I reframe the question in order to get at the moral logic that hides behind our conflicting emotions. The larger question we should ask is, “What punishment should women receive when they kill any of their children, born or unborn?”
One example I use comes from Virginia, where in 2009 the local district attorney refused to prosecute a woman who gave birth to her child in a hotel room and then smothered the child. An investigator from the local sheriff’s office said that because the umbilical cord was still attached, what the mother did was no different than a late-term abortion. She said:
I believe everyone was upset, except for the person who should have been upset, the mother. In the state of Virginia, as long as the umbilical cord is attached and the placenta is still in the mother, if the baby comes out alive, the mother can do whatever she wants to with that baby to kill it. And in the state of Virginia, it’s no crime. . . . Simply because the mother was there, and the baby had not taken its own identity allegedly at this point, it makes the baby not its own person.[3] If we can agree that this woman should have been punished for what was undoubtedly infanticide, then we should ask, “What should the punishment be if she had killed the baby five minutes earlier while it was in her womb?” I don’t think such a small difference in time and the location of the baby would change our intuitions about the matter. What about five weeks earlier? Or five months earlier? What should the punishment be for a woman who chooses abortion?
The most honest answer is the same answer we give for every other crime: “It depends.” In fact, if the pro-life advocate is stuck in a sound-bite situation, he can simply say that punishments for crimes are complex matters, but protecting the innocent is simple, and the unborn should simply be protected under the law. Punishments for crimes are not uniform because they are based on the killer’s intent and the circumstances involved and not just on the kind of crime committed. Not every homicide is considered first-degree murder, and punishment for homicide can vary from the death penalty to probation.
For many women, abortion has been legal for their entire lives, and in the United States there are no public education campaigns to discourage them from having an abortion (unlike for other harmful things such as smoking). Professional medical organizations endorse abortion, and many women choose abortion when their partner, family, or health-care provider suggests or imposes it upon them.
Finally, most women do not intend to kill their child through abortion. They just don’t want to be pregnant. They may even think abortion is a form of surgical contraception that keeps a potential person from becoming an actual baby.
Because of these factors, women may not be completely responsible morally for choosing abortion and so may not deserve as harsh a punishment as pro-choice advocates claim they would receive under an abortion ban. This reasoning is not a case of special pleading for the pro-life view; it is used to justify giving lighter sentences to women who kill their born infants.[4] Infanticide is considered less serious than first-degree murder, because the perpetrators of that crime are usually a danger only to their own offspring and are often under extreme emotional stress. Punishments for infanticide can be as light as one to two years’ imprisonment, or even probation.[5] If abortion were made illegal, “feticide” laws could be enacted that mirror current infanticide laws in language and range of punishments. That way, women who chose abortion, as well as the men who cooperate and the doctors who perform the procedure, would be appropriately punished based on each person’s level of moral responsibility.
Just remember: The question is not “Should we punish women for having abortions?” The morally relevant questions are instead: “Should men and women be held legally responsible for killing children?” And “Should we discriminate against children based on their age or where they live, or how dependent they are on their mothers?”
This post is adapted from Horn’s book Persuasive Pro-life: How to Talk About Our Culture’s Toughest Issue (2014).
Notes