More than three years after the Supreme Court overturned Roe v. Wade, our nation now aborts well over 1 million preborn children annually. This worsening crisis informs a continued debate within anti-abortion circles about whether all parties who willfully murder preborn children should be penalized under the law.
In his recent article for National Review entitled “The Wrong Tool for Protecting Women from Abortion,” Americans United for Life senior counsel Clarke Forsythe dismissed all “proposals to prosecute women for abortion” as nothing more than a “fringe notion.”
Forsythe observes that such equal protection bills—many of which our team at the Foundation to Abolish Abortion drafted—have been “introduced in several states in recent years to penalize women for abortions.” Forsythe defends the position of many Pro-Life groups that no woman should ever be prosecuted for willfully taking the life of her own preborn baby.
Catherine Glenn Foster, the now-former chief executive officer of Americans United for Life, also signed a national open letter endorsing that position alongside other established Pro-Life groups just a few weeks before the overturn of Roe. Forsythe invokes that controversial letter in his article.
But the stance of the Pro-Life establishment against any prosecutions for women who abort their children ensures the murder of preborn babies will never truly be abolished. Even worse, it guarantees that such murders will continue under the explicit protection of our laws.
Throughout his article, Forsythe casts equal protection legislation as efforts to “penalize women for abortions.” But the legislation he criticizes makes no specific mention of women in this regard, instead criminalizing the act of abortion for anyone and everyone willfully involved.
When reading the legislation in the Stateline article he cites, such as Georgia House Bill 441 and Idaho Senate Bill 1059, one will notice that these proposals merely extend the existing laws against homicide, assault, and wrongful death that already protect born people to protect preborn people as well.
In no sense are women targeted for prosecution or treated with partiality by this legislation. Any individual willfully involved—whether the third-party abortionist, the father of the baby, or the mother of the baby—would face the same penalty for prenatal homicide as they would face if equally involved in the homicide of a born child. Both types of people are equally made in the image of God, and both should therefore enjoy equal protection of the laws.
Forsythe says that “every prosecution of a woman would require a probing, detailed examination of her mens rea, her state of mind.” Why would that be a problem? That is already the case for every other type of criminal prosecution. This due process is exactly where we discern who is guilty and who is not—rather than preemptively assuming that every single woman involved with abortion lacks mental culpability.
In this way, Pro-Life legislation keeping abortion legal for women is the only policy in this debate that actually singles out women. Instead of singling them out for prosecution, however, it singles them out for legal immunity from prosecution.
These laws protect the thousands of women every year who willfully act as their own abortionists, ensuring that they face no penalties—and therefore no legal deterrents—for prenatal homicide.
Forsythe openly says that “whatever the degree of responsibility for any particular abortion decision, the criminal law should not be used to penalize women.” That means every woman receives complete legal immunity for abortion—no matter how willfully, maliciously, or heinously she murders her preborn baby.
When he roots his appeal in the issue of coerced abortion, Forsythe even overstates the extent to which coerced abortions actually occur. In his own explanation of the “modern prevalence” of coerced abortion, he cites a study from the Charlotte Lozier Institute, but he fails to explain that only 10% of women in that very study described their abortion as “coerced.” The same study found that 33% of women called their abortions “wanted,” while another 43% called them “accepted but inconsistent with their values and preferences.”
In other words, by their own admission, over three-quarters of respondents had their abortions willingly, making willful abortions at least seven times more prevalent than coerced abortions.
Even so, as with all other criminal prosecutions, our legal system must use due process to determine whether each party allegedly involved in prenatal homicide was a willful participant or a true victim. But instead of applying our existing judicial system in this way to protect preborn babies, Forsythe insists that our governing authorities should wash their hands and “leave the judgment to God.”
This assertion, more than any other argument he makes, reveals that Forsythe’s position is not founded in a Christian ethic of civil government. Christian doctrine teaches that God delegates judgment to human governments as His ministers of justice to wield the sword against crime and punish evildoers. Scripture recognizes the role of criminal sentences as the means to deter evil and establish justice in society.
Rather than affirming these basic Christian principles, which are the foundations of our Western judicial system, Forsythe entirely denies them with respect to abortion—the murder of preborn children made in the image of God.
Today, in a nation with over 1 million such murders every year, we desperately need civil government to wield the sword of justice against the evil of abortion. Forsythe instead instructs civil government to keep its sword in the sheath—abdicating its authority from God to carry out justice for preborn children, as long as their mother is the one committing the injustice.
Bradley W. Pierce is a constitutional attorney who serves as president of the Foundation to Abolish Abortion and Abolish Abortion Texas, as well as vice president of Heritage Defense. He is a Christian, husband to his wife Cindy, and father of their twelve children.
