I’ve seen some feedback from some who were shocked at pro-life activists would criticize Donald Trump for saying women who have abortions should be punished. I understand the logic. One example given was if you hired an assassin would you not be just as culpable as an accomplice? The answer to that of course is yes. I’m not saying that a woman who chooses to have an abortion does not bear guilt. She does. The question is do we criminalize that guilt? I would say in most circumstances no.
Here are five reasons why:
1. This isn’t politically wise.
There are some in the evangelical community, and specifically in the pro-life community, who lack political wisdom. I’m not saying everyone who argues criminalization falls into this camp, that would be unfair. I also don’t mean they lack wisdom entirely. The wisdom I’m talking about is exercising shrewdness in the political realm that can be (and usually is) hostile to a biblical worldview.
Jesus said to his disciples before sending them out for the first time, “Behold, I send you out as sheep in the midst of wolves. Therefore be wise as serpents and harmless as doves,” (Matthew 10:16, NKJV).
The word “wise” in the Greek is phronimoi. It can also be translated as “shrewd.”
D.A. Carson remarked in his commentary on Matthew that several ancient Near Eastern cultures were known for their prudence. He said that the disciples must not only be shrewd, but they must also be innocent. He also warned, “Yet, innocence becomes ignorance, even naiveté, unless combined with prudence.”
Carson continues, “So Jesus’ disciples, in their mission as sheep among wolves, must be ‘shrewd,’ avoiding conflicts and attacks where possible…”
Applying this to today’s perspective, pro-lifers are already battling the characterization that we hate women (especially those of us who are men). So far I’ve only seen men (anecdotal I know) advance this perspective which further fuels the flame fair or not.
Also it has been a battle to restrict abortion let along ban it entirely. Why in the world would you want to have a fight over criminalizing women? It will be hard enough to criminalize the person getting paid to abort the baby. In our current environment and culture it makes far more sense to focus on the abortionists – the ones who are actually murdering the unborn babies.
So is this position exercising proper shrewdness in the arena of the political wolves? I’d say no. It is a battle best avoided.
2. Those culpable go even beyond the mother getting an abortion.
If the woman is held criminally liable as an accomplice then what about the father of the child who may have paid for it? The friend who gave her a ride and provided support? The grandparents who pressured her to have one so as not to “ruin her life”?
Where do you stop because from a logical, legal perspective they all could be seen as accomplices in some form or fashion. Shall we lock all of them up too?
3. Does this make legal sense?
While you can definitely make a case how a woman who has an abortion should be held legally responsible, but it may also derail a case legally. Do you realize that before Roe v. Wade state abortion bans did not criminalize women. Why? Clarke Forsythe, a senior counsel with Americans United for Life, explains:
Why did the states target abortionists and treat women as a victim of the abortionist?
It was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.
The irony is that, instead of states prosecuting women, the exact opposite is true. To protect their own hide, it was abortionists (like the cult hero and abortionist Ruth Barnett when Oregon last prosecuted her in 1968), who, when they were prosecuted, sought to haul the women they aborted into court. As a matter of criminal evidentiary law, if the court treated the woman as an accomplice, she could not testify against the abortionist, and the case against the abortionist would be thrown out.
Forsythe pointed out that there have been no instances were a woman after 1922 was prosecuted for an abortion. There have been only two cases – one in Pennsylvania in 1911 and one in Texas in 1922 where a woman was charged for participating in her own abortion.
4. The goal is to end abortions, not punish people.
I don’t see how criminalizing women who get abortions will further our goal to end abortions. Banning abortion and holding the abortionists who get paid accountable, that is what will remove access. If there is no easy access for women to receive an abortion then there will be far, far fewer abortions. I want to be clear – we’ll never end abortion entirely on this earth because we will still be people with a sin nature.
Criminalizing mothers, I believe, is just being punitive, which brings me to my next point.
5. Compassion and mercy are just as important as justice.
The vibe I get from some who advance this position is a focus on law, but what about grace? What about mercy?
The prophet Micah wrote:
He has shown you, O man, what is good;
And what does the LORD require of you
But to do justly,
To love mercy,
And to walk humbly with your God? (Micah 6:8, NKJV)
Yes we are to “do justly,” but we are also to “love mercy.” Where is the balance? Is justice served if a woman is tried and convicted for having an abortion? Perhaps, but consider what circumstances a woman who seeks out an illegal abortion may be under.
She may be in an abusive relationship. She could be a victim of rape or incest. She may be under intense pressure to get an abortion. How could mercy be extended in those circumstances? By the way, I’m not making a case of exceptions for abortion, I think abortionists should be legally culpable in all of these scenarios, but there is a reason pre-Roe v. Wade why women were seen as secondary victims.
I also think of John 8 where Jesus encountered the woman caught in adultery. Where was the man in this instance? Is it just that only she were face the consequences of adultery? Under Old Testament law, those who commit adultery were to be put to death.
The Pharisees who brought the woman to Jesus were looking to see what Jesus would do. He said something that struck to the heart of those collecting stones. “He who is without sin among you, let him throw a stone at her first,” (John 8:7, NKJV). They eventually put down the stones and headed off realizing no one was qualified to throw that stone. Legally they had the right (or technically not since they were under Roman law at the time), but Jesus showed mercy.
“Woman, where are those accusers of yours? Has no one condemned you?” Jesus then asked the woman, (John 8:10, NKJV). She said no, and then he replied, “Neither do I condemn you; go and sin no more,” (John 8:11, NKJV).
According to the law she deserved death, but Jesus offered life instead. He called what she did for what it is – sin, but He did not condemn her.
From a pastoral perspective I’m far more concerned about offering mercy and showing grace to women who seek out an abortion than jailing them. Post-abortive women need our love, compassion and mercy, but most of all they need Jesus. There are a lot of ministries doing great work in this regard. By insisting that we criminalize women I believe we end up sacrificing mercy for justice, lose an opportunity for ministry, and going back to the legal argument may not see justice done either.
