A variety of reasons not to criminalize women who abort
In 2022, SPL signed a coalition letter opposing criminalizing women who get abortions. Recently, an SPL supporter emailed me expressing disappointment that we had signed this letter. He asked how abortion can ever be stigmatized if the government doesn’t care enough about it to prosecute women who get abortions. We exchanged several emails about it. Since this is a common question, I decided to combine my responses into a post here.
Why would someone who opposes abortion also oppose criminalizing women who abort?
I understood the supporter’s first email to be suggesting that if people don’t want to prosecute women, it must be because they don’t really care about abortion. I disagree with that assumption.
Consider: SPL’s chief communications officer, Herb Geraghty, spent over a year incarcerated for conspiring with other anti-abortion activists to block entrances to abortion clinics. Herb clearly cares about opposing abortion; he has sacrificed more than most people for the pro-life cause. Herb also signed the letter opposing criminalizing women for their abortions. It would be hard to argue Herb signed this letter because he doesn’t really care about ending abortion.
So why would someone who opposes abortion not want to criminalize women who get them? There are a wide variety of reasons, both pragmatic and principled.
Pragmatics: public backlash
A lot of people are concerned with the public backlash against abortion restrictions. Post-Dobbs, surveys show Americans identify as more pro-choice and more against abortion restrictions than they have been in decades. This trend is in the wake of laws that don’t criminalize women. We can imagine the response to laws that do.
In 2022, Pew Research found only 14% of Americans said a woman should face jail time for an illegal abortion. It’s not just pro-choice people who take this view. In 2023, another study found that, of people who said abortion should be illegal all of the time, 59% didn’t think women should face incarceration; of those who said abortion should be illegal most of the time, it was 71%.
Most people (including most people who think abortion should be illegal) don’t think women who get illegal abortions should face incarceration.
A politician introducing an equal protection bill (which would prosecute women who get abortions for homicide) is handing a PR gift to the abortion rights side. Such a bill proposed in, for example, South Carolina impacts conversations and voter sentiment across the nation. In an era of state battles and ballot initiatives, this means even if an equal protection bill could pass in a state like South Carolina, it would predictably contribute to results like Ohio enshrining abortion access into their state constitution. This is a critical vulnerability.
Some advocates of criminalizing women dismiss our concern about public backlash as a shallow desire to appease pro-choicers. This is a contradiction. Anyone who wants to abolish abortion in a democracy has to care what voters think. And anyone who recognizes that abortion kills children will, presumably, take seriously risks of increasing abortion due to cultural backlash.
Debating which strategies carry which risks is fair. Reducing concerns about harmful consequences to “people pleasing” is absurd.
Pragmatics: enforcement complexities
Some legal groups have pointed out that, prior to Roe v. Wade, the government primarily went after abortion providers, not women who got abortions. This was seen as a better use of limited time and resources, since prosecuting illegal abortion providers could prevent significantly more future abortions than focusing on individual women. Additionally, charging women with crimes related to abortion could hurt the chances of convicting abortion providers, since if a woman were treated as an accomplice she may be unwilling or unable to testify against the provider, weakening prosecution cases.
Cultural shame and the emotional and financial costs of legal battles already make it rare for women to come forward about illegal abortion practices. Adding the risk of prosecution would likely silence nearly everyone.
Principles: miscarriage investigations
Another issue is the investigation of miscarriage. There are, roughly speaking, 5 million pregnancies per year in the US. About a million end in abortion and about a million end in miscarriage, meaning both are incredibly common. About 1 in 4 women experience at least one miscarriage. Abortion and miscarriage are also physiologically very similar, especially with the rise of abortion pills.
If we allow prosecution of women who abort, we will be investigating women who have miscarried. State attorneys have already not been shy about this connection.
And realistically, not all investigations into miscarriage will end with no charges filed, because the justice system has an error rate. I have a master’s degree in forensics, and before I was the Executive Director of Secular Pro-Life I worked in a forensics lab. My education and experience in these regards left me with significant concerns about how well investigations are conducted and what factors contribute to perceptions of innocence or guilt. The justice system has an error rate, and even if it were a very low error rate (debatable), we will see parents who have just endured miscarriage investigated, and some of them incorrectly charged and prosecuted. It is a predictable injustice.
Principles: Blackstone’s ratio
Justice is not only about punishing guilty people, but also not punishing innocent people. William Blackstone said, “It’s better that ten guilty people escape than one innocent suffer.” Ben Franklin upped the ratio to 100:1. What do you think the ratio should be?
This isn’t a rhetorical question. It will never be the case that zero innocent people are punished by the justice system. Even the smartest and best-intentioned people working in a system aren’t infallible. We as a society condone some amount of innocent people punished as the price to pay for having a justice system at all. Ideally we minimize the errors (and corruption) as much as possible, and allow for recompense when results are incorrect.
It’s important to note that in criminal justice “innocent” and “not guilty” aren’t necessarily interchangeable. “Actual innocence” means someone didn’t commit the act in question. “Not guilty” could mean:
- they didn’t commit the act (they are actually innocent)
- they did commit the act but they didn’t have the intent for it to qualify as the crime charged
- they did commit the act and had the intent, but there isn’t enough evidence to prove one or both of those elements beyond a reasonable doubt
In a system designed to prevent the punishment of actually innocent people, if there’s reasonable doubt about whether either a person committed an act or they had the necessary intent, the proper verdict is “not guilty.” But when mitigating factors are common or evidence is unclear, our criminal justice system has an increased risk of reaching the wrong outcomes.
This brings us to two more reasons many pro-lifers oppose criminalizing women: they believe many women who get abortions either (1) don’t believe or understand they are killing human beings or (2) are pressured and coerced into abortion (or both).
DPLM thought of this illustration:
How many women who get abortions fall into each of these regions? The answer to that will impact what truly just laws would look like.
People who support criminalizing women tend to believe the ratio of women in the upper right region (those who understand that abortion kills a human being and choose abortion voluntarily) is high. People who oppose criminalizing women are more likely to believe the ratio is much lower, with most women falling somewhere in the other three regions (a range of combinations of women who don’t understand what abortion does, who are pressured into aborting, or both).
Those concerned about criminalizing women don’t have to believe zero women are in the upper right, only that the ratio is low enough that the risk of incorrect guilty verdicts outweighs the benefit of correct ones.
If we don’t criminalize women who abort, how will we stop abortion?
Currently one of the greatest challenges to decreasing abortion is the proliferation of abortion pills. Pro-life states have started indicting people in pro-choice states for shipping pills in defiance of state law, and pro-choice states have started passing shield laws saying they won’t help with these investigations. We don’t know how that is going to play out in courts.
But even as that battle continues, laws against abortion that don’t criminalize women still stop some people from getting abortions. (I’ve talked about this extensively here.) These laws decrease the supply of abortion.
They can also decrease demand for abortion by encouraging some people to be more careful about sex, which leads to fewer unplanned pregnancies in the first place. (Research on that here, brief video about it here.)
We also decrease demand for abortion as we persuade more people to see the pro-life perspective, regardless of the law. SPL has people repeatedly tell us that we moved them from pro-choice to pro-life. I’ve had specific women tell me they chose not to abort because of SPL speeches or discussions. We want to help more people experience this. Laws are important, but we don’t have to wait for laws to change in order to persuade people against abortion.
These methods move us in the right direction. They don’t get us as far as we want as fast as we want, but they get us closer than equal protection bills, which, as far as I can tell, will mainly work to move the American electorate more solidly into the pro-choice camp.
Opposing criminal penalties for women is not a sign of weakness—it’s a commitment to justice, even as we continue to oppose abortion through more ethical, compassionate, and effective means.
Part of SPL’s mission is coalition building. This means we don’t have to agree on everything to work together where we do have common ground. Whatever you think the laws should look like, if you want to help us advance secular arguments against abortion, we welcome you.
If you appreciate our work and would like to help, one of the most effective ways to do so is to become a monthly donor. You can also give a one time donation here or volunteer with us here.
