Who Wants to Imprison Pregnant Women For Having Abortions?: Not Necessarily the Pro-Life Community

By SHERRY F. COLB

Wednesday, Aug. 22, 2007

Champions of a fetus's right to life (as against a woman's right to terminate her pregnancy) have, on occasion, expressed approval for exceptions to their proposed bans on abortion. I assessed one such exception - for the subset of pregnancies resulting from rape - in one prior column. In another, I assessed a different exception - for the subset of pregnancies resulting from incest. In this column, I shall examine an exception that applies to all abortions, not just to a limited subset.

Subset exceptions - for example, to save the life of the mother - implicitly condone (or at least tolerate) the rationale behind the particular group of abortions they allow. The exception I shall now discuss covers, instead, a very large group of people who would necessarily be directly involved in the process of any unlawful abortion. The group in question consists of all pregnant women who obtain abortions. That is, proponents of abortion bans often say they would exempt the pregnant women themselves from criminal responsibility, targeting only those people who provide and facilitate the procedure. I will here assess the meaning of such an enormous exception.

Is the Pregnant Woman's Choice "Justified"?

One reason to declare an exception to a proposed criminal ban of any sort is that the rationale for the ban does not apply to a particular set of cases. A criminal prohibition against homicide, for example, will typically carry an exception for killings undertaken in self-defense. The reason for the exception is simple: Our society does not view it as wrong to kill another person who is attempting to kill us; most view it, on the contrary, as a fundamental human right. This is another way of saying that killing in self-defense is justified and is accordingly - properly - exempt from criminal prohibition and prosecution.

An exemption to a criminal ban on abortion for the woman whose pregnancy is terminated, however, cannot rest on a justification rationale. If the woman were justified in having her abortion - that is, if she were doing the right thing - then it would necessarily follow that the doctor carrying out the procedure would be acting justifiably as well.

To invoke the self-defense analogy, when one person is in a position to kill another justifiably, to protect her own life from an attack, then a third party will also, ordinarily, enjoy the right to kill the would-be attacker. If, in other words, a killing or other criminal act is justified in a given instance, then no one should be prosecuted for performing the act in question.

Is the Pregnant Woman's Choice "Excused"?

When the criminal law exempts a class of people from responsibility for actions that are banned and wrongful (and for which everyone else involved can be prosecuted), it may be because the people enjoying the exemption qualify for an excuse for otherwise prohibited conduct.

Take, for example, the case of insanity. If John Doe is caught shooting and killing his innocent and harmless neighbor George Roe, then a jury will probably find John Doe guilty of criminal homicide. If, however, Doe can demonstrate at trial that he was suffering from a mental disorder that generated in his mind the hallucination that George Roe was a rattlesnake poised to bite Doe (in the jargon of the insanity defense, if Doe's mental disorder deprived him of the capacity to understand the nature and quality of his actions), then Doe may be acquitted of murder on that basis.

Is the exempted pregnant woman who has an abortion banned by the criminal law the beneficiary of an "excuse"? One possibility, if she is excused, is that women as a group cannot be held responsible for their actions. This possibility need not long detain us, as women do not otherwise find themselves exempt from the criminal law and therefore enjoy no such status-based freedom from criminal responsibility.

Another possibility is that pregnant women cannot be held responsible for their actions. Here again, however, the criminal law does not support the hypothesis. Pregnant women are otherwise subject to all of the criminal laws that govern men and non-pregnant women alike. Indeed, I have heard of no proposed exemption from an abortion law itself for pregnant women who perform abortions on other pregnant women. Any excuse-based explanation must lie, then, in the relationship between the woman whose pregnancy is terminated and the fetus that dies in the process.

In at least 30 countries, as I discussed in an earlier column, a woman who kills her own newborn baby will generally be treated as impaired - receiving a sentence of probation and counseling - rather than as criminally homicidal. The logic is that of excuse: a woman who gives birth and kills her own child soon afterward is extremely likely to have killed as a product of an extreme mental illness that afflicts a small minority of women post-partum (and that can lead them to attack their own babies). For that reason, the law will treat this action largely as a symptom of illness rather than as a crime. One could imagine similar thinking animating anti-abortion activists: The woman who has an abortion is presumptively acting out of a pregnancy-related emotional disturbance and therefore should be treated as sick rather than criminal; her provider, by contrast, has no such excuse.

This theory suffers from two flaws, however. First, proposed abortion bans that exempt the woman whose pregnancy is terminated (such as the South Dakota law passed but then rejected in a ballot initiative) do not provide for mental health treatment (or even a mental health commitment hearing) of any sort for the woman who has an abortion. This suggests that she is not excused by virtue of a presumed mental defect that generated her decision to have an abortion.

Second, although many countries do approach maternal neonaticide in the manner described above, the U.S. is quite plainly not one of them. U.S. law and specific proposed statutes exempting women obtaining abortions from the criminal law, then, would not appear to be in place to accommodate the notion that a person who decides to terminate her pregnancy is, for that reason, necessarily insane.

Is the Pregnant Woman's Choice the Product of "Victimization"?

One principled rationale for the "pregnant woman" exemption from anti-abortion laws may remain: If the woman is neither justified in terminating her pregnancy nor excused from otherwise wrongful conduct, it may be that she is viewed as a victim rather than as a perpetrator of that conduct.

If one imagines abortion as a crime against both fetuses and their mothers (in the way, for example, that an unwanted or forced abortion would clearly be), then it would follow that women should not go to prison for this crime. An organization that calls itself "Priests For Life," for instance, takes the position that abortion providers are profiteers who seduce pregnant women into abortion factories with lies about the embryo or fetus. If such providers are exploiting the ignorance and desperation of pregnant women for profit, then the women may indeed be victims rather than perpetrators.

The victimization argument has the most to offer of the three. As a political matter, even those who are comfortable with the passage of anti-abortion legislation find unappealing the prospect of imprisoning women for abortion, and victimization provides a seemingly principled account of this discomfort. As a practical matter, moreover, if women are indeed traumatized by abortion, as Priests For Life suggests, then they are unlikely to "come forward" to report their "assailants" - the providers who represent the repeat players in the abortion arena - if the women risk going to prison themselves.

One problem, however, is that at least some proportion of the women who have abortions know precisely what they are doing - even pro-life advocates would presumably acknowledge that this is true. Many are educated and understand the progression of fetal development. No provider has misled them, and they have not later expressed regret for what they have done. If one is criminally prosecuting providers, then shouldn't it follow that the women who go to those providers - at least the women who understand as much about the biology of what is lost as their providers do - should also be prosecuted?

Something Paradoxically Unique About Pregnancy

If one is prosecuting abortion providers, then, it would seem that in fairness, women should not enjoy an exemption from such prosecution. I nonetheless admit to feeling a small measure of relief that in the U.S., even avid abortion opponents ordinarily stop short of wanting to incarcerate the women themselves. I view such a concession as, to a degree, confirming what I have argued about pregnant women in my new book, When Sex Counts: Making Babies and Making Law: Pregnancy is a unique condition that demands special treatment as a matter of simple equality. It is this uniqueness that, in my view, provides the basis for the right to terminate a pregnancy. Forcing a person to share her body with another living creature (whether one classifies it as a "potential person" or as a "person") for nine months against her will is a grave assault on her bodily integrity, particularly given the sex-specific nature of the burden. Though people who support an abortion ban do not acknowledge this uniqueness in the way that I propose, they at least concede it implicitly in formulating an exception to the criminal law for the very people seeking the procedure that pro-life advocates call "murder."


Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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