Donald Trump has successfully re-opened a thorny debate within the pro-life movement as to the question of whether women who have abortions should be “punished” under a potential law banning abortions. But they’re not “punished” under current laws that ban abortions.
Most of the debate surrounding Trump’s controversial remarks have revolved around what ifs. What if the United States once again protects unborn children under law and bans abortions? Abortion practitioners should obviously be prosecuted for actually engaging in the banned abortion and destroying the life of a baby before birth — there’s no disagreement among good-faith pro-life people on that point.
So what about the women?
As Clarke Forsythe, a pro-life attorney with Americans United for Life, has pointed out in an extensively researched article, the laws banning abortions prior to Roe v. Wade did not subject women to punishment but focused on prosecuting abortion practitioners who killed unborn babies in abortions.
But what often gets forgotten in this hypothetical debate is that it’s not just a hypothetical debate. There are current laws that are banning abortions in the United States right now. Take, for example, the federal partial-birth abortion ban that Congress approved and the Supreme Court eventually upheld in the Gonzalez decision. Here’s the text of that ban — which specifically only targets abortion practitioners from prosecution, rather than the women involved:
18 U.S. Code § 1531 – Partial-birth abortions prohibited
(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both….
(b) As used in this section—
(2)the term “physician” means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions:
Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section.
(e) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section….
So how are women treated under the partial-birth abortion ban or how would they be treated under potential wholesale abortion bans? They likely would be treated as witnesses or informants.
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There’s a difference under the law between drug users and drug traffickers. The sale and distribution of drugs, different from using them, would be akin to doing abortions and the abortionist would be treated in a similar manner to a drug trafficker while law enforcement frequently drops or reduces charges against drug buyers in exchange for assisting in prosecuting the drug kingpins who are the runs running the industry.
The sex trafficking industry is also another good analogy. Women who are pressured to sell themselves for money are knowingly violating commercial sex laws despite the obvious coercion. But it’s the pimps who should be prosecuted, not the women they victimize. Ergo, law enforcement officials frequently work with sex trafficking victims to prosecute pimps and higher-ups, drop charges and help get the victims into the treatment and counseling programs they need to recover.
