Don’t Criminalize Women for Abortion

The overturning of Roe v. Wade has revived abortion criminalization laws, dormant for fifty years, in several states. Included in the penal code of these laws – unlike more recent laws curbing abortion in Oklahoma and Florida – is the prosecution of women who procure abortions. If a woman has an illegal abortion in one of these states, we could potentially see her handcuffed, brought before a grand jury, and tried. And we will see her because the media and abortion advocates will maniacally and viciously cover every second. The New York Times has dared us to do so.

The recent state laws forbidding the prosecution of abortive women, but authorizing the prosecution of anyone else who facilitates the abortion, should be the pro-life policy going forward. And we must publicize this policy widely.

But why? Abortion is murder, the deliberate killing of an innocent person. Women who have abortions typically bear some responsibility for the act. Additionally, holding women personally accountable may discourage them from reckless sexual encounters. By contrast, promising criminal immunity may prompt them to seek illegal abortions without fear.

A handful of pro-lifers support holding women criminally liable. The New York Times, of course, venomously profiled them with a recent front-page story.

To prosecute women for abortion is wrongheaded, and not simply because doing so would instantly turn the country against abortion prohibition – consider the backlash that video images of a 16-year-old girl under arrest would generate. And that’s because abortion, a unique crime, carries with it a different kind of life sentence.

All murders share the same, tragic outcome: the loss of innocent life that cannot be restored. All murders are not adjudicated in the same manner, however. The law differentiates three degrees of murder’s severity, which are determined by the act’s motives and means. In this regard, criminal law matches Catholic theology in assessing immoral action: the act itself is primary, but intention and circumstances are also considered. These two can mitigate the culpability of the actor, but they can never justify the wrong action.

Murders are almost always motivated by one (or more) of the seven deadly sins. Abortion, by contrast, is almost always motivated by fear, insecurity, and social pressures ranging from the child’s father to the mother’s parents to the woman’s economic situation. (Yes, lust can well lead to abortion, but does not cause it directly.) Murderers may pose a threat to public safety; women procuring abortions do not.


When we look at the act itself, abortion is so repulsive, so counter to nature, that is it arguably more egregious than other murders. For a mother to consent to killing her own child, with whom she is supposed to share a bond more unique and beautiful than any other in the created world, she cannot be of sound mind at the fateful moment.

Even for a seemingly frivolous or selfish reason such as “I’m not ready to have a child,” she is not comprehending the gravity of the action – and a lifetime of imbibing pro-abortion propaganda, wittingly or not, makes moral discernment more clouded. Those women who “shout their abortions” in celebration are not of sound mind.

Abortion, therefore, has two victims: the child and the mother, even if the latter doubles as the perpetrator against both. Victims need compassion and healing, not prosecution. The horrific memory of the lost child is punishment enough.

Those who help women procure abortions – doctors, nurses, pharmacists, black-market abortion pill peddlers – participate in the murder differently than the woman. These have no connection to the child and seek personal gain from another’s distress. They should be punished for their crime accordingly. If a woman aborts her pregnancy without any help from others, she needs psychiatric help, not jail time.

In essence, this legal position of the pro-life movement follows the pastoral approach of the Catholic Church. No entity has more forcefully and consistently condemned abortion as evil. And no entity has more proactively invited women to receive forgiveness along with free spiritual and mental counseling to facilitate their healing. As the extension of the Incarnation in time, the Church shows to the world the seemingly paradoxical attributes of God: He is Justice, and He is Mercy.

By refusing to criminalize women for abortion, America learns that the pro-life movement, not abortion advocates, has the best interests of women at heart. Not prosecuting women does not mean that abortion is not serious. Rather, because of how serious abortion is, it is adjudicated differently than other murders. Abortion kills a child. It also kills the soul of a mother. Pro-lifers are ready with creative and caring means to bring peace to her soul.

Since the fall of Adam and Eve, men and women have succumbed to sexual temptation despite fears of pregnancy and massive social consequences. The threat of jail time for abortion will do little to discourage non-marital sexual activity that leads to abortion. That requires a massive cultural shift, beginning with confronting the contraceptive mentality (sales of contraceptives have skyrocketed since Dobbs was issued), to which outlawing abortion is the first of many needed contributions.

To best protect life, we want those who would provide abortions to be frightened out of business by appropriate legal threats. But for those women who seek an abortion, we need a different set of remedies since they participate in this crime in a manner unique from all others. The pro-life answer to women deceived by the Culture of Death is love, mercy, and hope.


Photo: Bill Oxford, Getty via iStock

You may also enjoy:

Robert Royal’s Old News n Abortion

Cardinal Gerhard L. Mueller’s On Questions about Rights

David G. Bonagura Jr. an adjunct professor at St. Joseph’s Seminary, New York. He is the author of Steadfast in Faith: Catholicism and the Challenges of Secularism and Staying with the Catholic Church: Trusting God's Plan of Salvation.