In the case of an abortion, the mother’s actions are a cause of the baby’s death, without which the baby would still live. The woman and the abortion doctor partnered to murder her baby. Thus, if the woman voluntarily sought out the abortion—meaning she was not coerced by someone else (who would then be charged himself in the matter)—then she was guilty for the murder. She actively sought out the “doctor” to kill the baby in her womb. The woman is comparable to the man who hires a hit man to kill his wife. He is a murderer, even if indirectly. This is how state laws work for conspiracy in such murder. It is also how the Bible understands the guilt for murder.

Something happened that many of us never thought would happen—the Supreme Court just overturned its infamous 1973 decision Roe v. Wade, which for the most part prohibited the states from regulating abortion in the first and second trimester. The 1992 decision Casey v. Planned Parenthood modified this to prohibit states from abortion regulations that place an “undue burden” on mothers prior to the baby’s “viability.” In other words, Roe and Casey legalized early-term abortions in all of the 50 states.

But that has all changed now with the decision in Dobbs v. Jackson Women’s Health that was issued on June 24, 2022. By overturning Roe and Casey, the Supreme Court has returned abortion laws to the domain of the states—which is the rightful constitutional place for such criminal laws (made especially clear by the Tenth Amendment). Most criminal laws, part of state “police powers,” should be set by the states, not the federal government. With Roe rightfully overturned, this means a state like California can continue to permit abortion, while a state like Alabama can outlaw it completely.

We should celebrate the overturning of Roe v. Wade, both because it is the correct decision per the U.S. Constitution, but also because it ends the legal protection of the “right” for a mother to kill her baby inside her womb. However, while we celebrate Roe being overturned, we must also recognize this is a new stage in the so-called “pro-life” movement. If the goal is to outlaw abortion, then we must now seek to outlaw abortion in as many states as possible. Overturning Roe was just the beginning.

Yet even here there seems to be disagreement, as some who call themselves “pro-life” speak as if the goal is only to reduce abortions (a goal many “pro-choicers” also speak of). Others, like myself, say we certainly want there to be no abortions, but there is also the goal to simply outlaw abortion in all of the United States. Abortion is murder, and therefore all people who voluntarily participate in abortion should be charged with murder. (This is why “anti-abortion” is often a better term than “pro-life.”)

Thus, with the anticipation of Roe being overturned thanks to a leaked first draft of the opinion, a new debate arose among those in the so-called “pro-life” camp over two questions: (1) whether the mother who aborts her child should be punished by law, and (2) what the penalty for abortion should be for the doctor and the mother.

Should the Mother Who Aborts Her Baby Be Punished?

This question has generated some serious debate, as many in the “pro-life” camp probably never expected us to be in this situation. Let’s start with where there is agreement. Everyone on the pro-life side believes abortion is murder and is thus morally impermissible. Everyone agrees an abortion doctor/provider should be charged with murder, as he is the one who performs the act of killing the child. Therefore, states should pass laws criminalizing abortion as a form of murder, and states should shut down abortion clinics and prosecute abortion doctors. So far, so good.

Yet it logically follows that a woman who procures an abortion resulting in the death of her child should also be prosecuted for the crime of murder. Though the woman who hires an abortion doctor did not do the killing herself, she is an accomplice to the murder or a conspirator. Accomplice liability (sometimes called aiding and abetting) involves intentionally assisting another in committing a crime, while conspiracy involves an intentional agreement, even implied, to commit an illegal act.

In the case of an abortion, the mother’s actions are a cause of the baby’s death, without which the baby would still live. The woman and the abortion doctor partnered to murder her baby. Thus, if the woman voluntarily sought out the abortion—meaning she was not coerced by someone else (who would then be charged himself in the matter)—then she was guilty for the murder. She actively sought out the “doctor” to kill the baby in her womb. The woman is comparable to the man who hires a hit man to kill his wife. He is a murderer, even if indirectly. This is how state laws work for conspiracy in such murder.

It is also how the Bible understands the guilt for murder. King David instructed his men in a letter to have Uriah murdered—“Set Uriah in the forefront of the hardest fighting, and then draw back from him, that he may be struck down, and die” (2 Samuel 11:15). Though David did not directly kill Uriah, the prophet Nathan told David that he did “what is evil” in God’s sight and “struck down Uriah the Hittite with the sword” (2 Samuel 12:9). In other words, David was guilty of killing Uriah, an innocent man. And God punished him accordingly (2 Samuel 12:10). Hiring someone else to murder for you is still murder.

Let us also ask this question—if a woman who voluntarily had an abortion performed is not guilty for the crime of abortion, then what is she guilty of? Did she do nothing wrong? Was she a passive agent in the murder? The problem with saying the woman is not guilty of murder is this makes her to be a victim rather than a perpetrator of the crime. Sadly, this is how many “pro-life” advocates speak. Yes, there are many bad actors in the abortion industry, including those who teach abortion is morally permissible and encourage women to have an abortion (including employers that want childless women workers). However, that does not relieve women from moral and legal agency for committing an abortion. There are also lots of bad influences that lead to a person using heroin, or even selling it, but our laws do not say such a person is not legally responsible for breaking drug laws because he had bad parents and attended a drug-ridden school.

One of the greatest problems in the entire abortion industry is the fact that abortion has been legal. The law is a teacher, and the law saying abortion is permitted and a constitutional “right” teaches women and men that it is not morally wrong. But if a state outlaws abortion, then that has all changed. The law will explicitly teach that abortion is immoral and considered murder by the civil authorities, and those who carry out such murder will be punished. This teaching should be reflected in all state institutions, including public schools. Of course, women will only be charged for crimes after such a law is enacted, meaning there will be no ex post facto laws.

In many states, if a person murders both a pregnant woman and the baby in her womb, he will be charged with double homicide. It is only when the mother murders her own baby that she is not guilty of murder. This is a double standard. Consistency demands that the mother who kills her child via abortion is punished for the crime along with the abortion doctor.

A Critique of Those Who Do Not Want to Prosecute the Mother

Now some “pro-life” leaders are saying we should only pass laws that lead to the prosecution of abortion doctors, not the women who have the abortion performed on them. Let’s start with the argument by the influential Baptist Al Mohler from back in 2016:

But here’s where the pro-life movement returns back to say, who is the guilty party in an abortion? It is the person who brings about the death of the child. The woman seeking the abortion is not without moral responsibility, but she is not herself bringing about the death of the unborn human baby. That’s the crucial issue here, and that’s why the pro-life movement has consistently sought to criminalize abortion at the level of the person performing the abortion.

This argument flatly misunderstands causation in criminal law, including accomplice murder and conspiracy. Yes, the person directly performing the abortion is guilty for bringing about the death of the child. But so is the mother who voluntarily goes to see the abortion doctor to have her baby killed. Mohler says “she is not herself bringing about the death of the unborn human baby.” Following this logic, then neither did David “bring about” the death of Uriah, since he asked someone else to do the killing for him. Mohler fails to account for the role of indirect actions, wanting only to prosecute the hit man and not the guy who paid him to kill.

Next let’s turn to the argument by another Baptist, Denny Burk, who describes what I am advocating as “abolitionist” and argues the “pro-life” movement has always insisted on not prosecuting mothers who kill their children. Let’s just stop right there and say it is irrelevant what some movement said prior to Roe being overturned. Moreover, many states pre-Roe did incriminate women who had abortions (see below). I have long considered many within the Republican Party to only give lip service to being “pro-life,” and thus they would not actually know what to do if Roe were overturned. It is quite likely that many in the “pro-life” movement maintained a more palatable position so as to gain political favor. There is no reason for that now. We were previously working with the Roe boundaries. But it is a new age. As for the term “abolitionism,” this is often used for those who reject incrementalist approaches to outlawing abortion (which I do not). Thus, this is a separate issue and a straw man argument by Burk.

Burk has two arguments against prosecuting women who commit abortions. First is a moral argument that “it is not always clear what level of culpability should be assigned to the mother.” While the mother has “moral agency and culpability in seeking out an abortion… it is not always straightforward to what degree she is morally implicated.”

Read More