The dangerous myth of ‘equal protection’

So far this year, bills have been introduced in at least four states that aim to abolish abortion, including changes to the criminal code that would prosecute women who get abortions with murder. In some states, they could get the death penalty. Advocates of these bills invoke the principle of “equal protection,” the idea that killing an unborn baby is no different from killing anyone else.

While these bills often include moving language about the value of the unborn child, and while we share their goal of protecting the lives of these children to the fullest possible extent in the law, as a pro-life activist with more than 20 years on the front lines, I am firmly opposed to such measures.

It’s not just that pursuing these bills is a waste of resources, with even very conservative states like South Carolina and Oklahoma resoundingly rejecting them. Nor is it that the American people overwhelmingly oppose the idea, which conjures the ugliest stereotypes of our movement as vengeful and anti-woman. Prosecuting women isn’t just imprudent — it’s bad policy, and it would do nothing to reduce abortion while doing enormous damage to the pro-life cause.

Pre-Roe laws targeted abortionists

Before Roe v. Wade, only a handful of state anti-abortion laws included any provision for prosecuting the woman. Lawmakers saw the abortionist as the real culprit, killing unborn children in cold blood for money. They also recognized they would need the woman as a witness to catch the abortionist.

Those early anti-abortion pioneers recognized that women were being exploited by abortionists. They did not consider her innocent of all moral culpability but still saw her involvement to be fundamentally different from the abortionist’s. They knew that a woman seeking an abortion doesn’t have the mindset of a murderer. As pro-life advocate Frederica Mathewes-Green put it, “She wants an abortion as an animal caught in a trap wants to gnaw off its own leg.”

Most women are pressured to abort

Today, we have even more reason to see the woman as something other than a cold-blooded killer. After five decades of legal abortion, we know how often women are pressured into abortion by boyfriends, husbands, parents, employers, and others. New, peer-reviewed research shows that only one-third of women who had abortions describe them as a free choice, with one in four describing their abortions as unwanted or even coerced.

There is also the problem of “informed consent,” especially in the age of abortion drugs, readily available online and often deceivingly marketed as “missed period pills.” And women are still being told that the child in the womb is just a “clump of cells” — propaganda from the abortion industry and their media allies that reaches into every state with anti-abortion laws on the books.

The problem of mens rea

All of this means that it would be very difficult, if not impossible, for prosecutors to establish the mens rea or “state of mind” of the woman on trial for abortion. Mens rea is a key component in any homicide case. It’s one of the reasons we have different categories of homicide. Another reason is that under our system, convictions require solid evidence of criminality — evidence that must be collected by police detectives.

Advocates of equal protection measures overlook this crucial point. They have the idea that if you don’t prosecute the mother for homicide, you don’t really value the unborn child. But that’s not how our legal system works. The law is not primarily an expression of how much we value crime victims, but of how we can best address problems in the real world. A prosecutor doesn’t indict someone with first-degree murder because of how valuable the victim is, but because of how strong a case they can make.

Abortion is not like other homicides

One reason that prosecutors would struggle to get convictions for abortion is that abortion is just not like other homicides. Even without another person pushing a woman to abort, she worries about caring for the children she already has, holding down her job during pregnancy and the months after birth, and paying higher rent for the additional space needed to care for a child. These are not “selfish” reasons.

Moreover, unlike the victim of all other forms of homicide, the victim of abortion cannot be seen, has no name — the unborn child is a total stranger to the mother.  The child is not her enemy. She just wants to be “unpregnant.” To demand that she be considered an accessory to murder ignores the unique aspects of abortion and how pregnancy and childbirth impact women, especially disadvantaged women.

‘Equal protection’ is not equal

But even if we could ignore the uniqueness of abortion, the penalties of an “equal protection” law would not be meted out equally. Instead, those penalties would fall disproportionately on women — specifically on poor and minority women, who undergo a disproportionate number of abortions (even while being more pro-life!).

Every single abortion prosecution would target the mother, for it would be the mother showing up at the ER suffering abortion complications, or the mother being turned in by someone she confided in. Speaking of which, we mustn’t overlook the impact such a measure would have on the work of pregnancy care centers. What woman would confide to a pro-life counselor that she’s considering abortion when that means she’s considering committing a felony? What woman would share her story of abortion regret if it could trigger her prosecution for murder? 

Meanwhile, what happens to the father? He would only face prosecution if the mother turned him in. But even then, it would be her word against his. What of the father who opposes the abortion, but is now faced with the prospect of turning in his wife or girlfriend to the police—just like anyone else who has knowledge of a planned felony? What does that do to his hopes of changing her mind?

As for the abortion provider, the only one who can identify him to the authorities is the woman. But now she’s a co-conspirator, who has a Fifth Amendment right not to incriminate herself. The only way to get her cooperation is to grant her immunity—and the whole “equal protection” premise collapses.

Prosecuting doesn’t work: Brazil

Let us put these hypotheticals to one side and look at an actual case of a jurisdiction with criminal penalties on the books for women who get abortions. Abortion is illegal in Brazil, with the law penalizing both women and abortion providers. And yet half a million unborn babies are aborted every year. 

In Brazil, rich women know where to go for relatively safe abortions, and poor women know where to go for dangerous abortions—with an extremely high rate of complications requiring emergency care. The only women ever prosecuted for abortion in Brazil are poor. Our legal system may be more equitable than Brazil’s, but it’s hard to imagine that the impact of prosecuting women—in both prison time and botched abortions—would not fall overwhelmingly on the most disadvantaged of us.

Join me in opposing these bills

Thankfully, none of these horrors will come to pass, because none of these bills has any hope of being enacted by any state in the Union. But the campaign to introduce and rally behind these bills is already doing real harm to the pro-life movement.

Though less than 2% of Republican state legislators support such measures, Republican caucuses and state pro-life organizations face backlash whenever they’re introduced. Headlines like “Four states consider bills to treat women who get abortions as murderers” tar the entire pro-life movement as vengeful and out of touch. More than that, they can make pro-life lawmakers reluctant to touch the issue, as in South Carolina, where battles over such bills have scuttled the effort to protect children from abortion before the sixth week of pregnancy.

I invite you to join me in standing firmly against any measure that would prosecute women for abortion. It’s up to God to judge their moral culpability. And it’s up to us, with His help, to work towards a world where no woman feels abortion is her only choice.