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President-Elect Donald Trump said during his campaign that he was “pro-life with exceptions” and would nominate Supreme Court justices who would be likely to overturn Roe v. Wade. This would put abortion legislation back in the hands of the states. If a state banned abortion “the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman,” he said. In the following article Tim Bradley of the Lozier Institute explains that this was position before the 1973 Supreme Court decision swept away all state laws banning abortion.
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The treatment of women seeking abortions arose several times during the election cycle. Some abortion advocates claim that pro-lifers want to punish women seeking abortion. They argue that women were punished for having abortions before Roe v. Wade was decided by the Supreme Court in 1973, and that if Roe is repealed women will once again be subject to punishment.
Those levelling these charges may sincerely believe that the logical implications of the pro-life position—that each and every human being, at any stage of development and condition of dependency, possesses a right to life simply by virtue of being human and ought to be protected by law from having that life taken from it—entail that women seeking abortions should be punished for their cooperation in an act that ends an innocent human life.
Are they right? Accurate knowledge of the history of abortion law in this country before 1973, the legislative efforts of the pro-life movement to reduce and ultimately end abortion since Roe, and the rationale at the heart of the pro-life movement reveal that the answer is—emphatically—no.
Did the government punish women who procured abortions before Roe? Clarke Forsythe, Acting President of Americans United for Life, writes that there were zero prosecutions of pregnant women under any abortion law in the United States between 1922 and 1973. In fact, the only two documented cases in American law in which a woman was charged with participating in her own abortion occurred in 1911, in Pennsylvania, and 1922, in Texas. In neither of those cases was the woman convicted.
Justice Blackmun himself, in the majority opinion for the Court in Roe, noted the absence of punishment for women procuring abortions under prevailing abortion laws in America, writing that in “many States” a pregnant woman “could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.” Most states’ statutes did not allow for the prosecution of women seeking abortions, and in states that did have statutes prohibiting women from performing self-abortions or consenting to an abortion performed by another, no women were prosecuted.
The reason for this is simple enough. The record of state abortion laws before Roe makes clear that the laws targeted for prosecution the abortionists themselves—the “principals” of the act—rather than the pregnant women—the “accomplices.” In fact, most states did not even regard the woman as an accomplice. Some classified the woman in law as a victim of the abortionist. The reason for this was partly practical: if the woman is considered an accomplice to the crime of abortion, she cannot testify against the principal—the abortionist, in this case—in court, thus weakening the state’s ability to effectively enforce the law against abortionists.
Forsythe captures the states’ rationale for enforcing abortion laws in an op-ed in the Los Angeles Times. “The states understood that the point of abortion law is effective enforcement against abortionists; that the woman is the second victim of the abortionist; and that prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists,” he writes.
Given that women were not punished for seeking abortions before Roe, might abortion advocates nevertheless be correct that women will face penalties should Roe be repealed? There is no reason to answer in the affirmative.
To understand why, it is helpful to grasp that abortion will not automatically be re-criminalized should Roe be overturned. As Paul Linton writes, overturning Roe will neither make abortion illegal nationwide nor restore state abortion laws to what they were prior to 1973. Most state laws prohibiting abortion have either been repealed or overridden by state court decisions, and as such would not be effective to prohibit abortion at this point. A handful of states, however, have passed laws since 1973 that would be triggered by a repeal of Roe and would prohibit abortions in those states.
This is pertinent to the question at hand because it means that most states will have to enact new laws to prohibit abortion if Roe is repealed. The history of abortion law in this country—a history which legislators will surely be familiar with and influenced by—gives no reason to suspect that new abortion prohibitions post-Roe will punish women for procuring abortions.
Additionally, most pro-lifers and all major pro-life organizations oppose punishing women for procuring abortions. An examination of abortion restrictions that have been enacted at both the state and federal levels indicate that pro-life lawmakers have no interest in punishing women. For example, the federal Partial-Birth Abortion Ban Act of 2003explicitly states, “A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section.”
This history affirms that women were not punished for procuring abortions under American law before Roe, and that they will not be punished under state abortion statutes after Roe is overturned. This position against punishing women, which the pro-life movement embraces, is coherent with its fundamental premises.
Abortion law before Roe showed a high level of sympathy for pregnant women facing difficult circumstances. It also recognized that these women’s testimonies were crucial in order for the state to be able to carry out its aim of protecting the unborn child by punishing those who perform abortions.
Robert P. George and Ramesh Ponnuru explain that the pro-life movement wants our laws today to accomplish the same thing that pre-Roe laws did for decades. Those laws “recognized that unborn children are living human beings with the same right not to be killed that the rest of us possess; they gave effect to this recognition by prohibiting abortion; and they imposed no legal penalty on the mothers.”
Saving babies, not punishing women, has been the purpose of the pro-life movement in this country from the start and continues unabated today.
Tim Bradley is a research associate at the Charlotte Lozier Institute. Reproduced with permission from the Lozier Institute’s blog.