During Tuesday night’s vice presidential debate, pro-abortion vice presidential candidate Tim Kaine made the claim that pro-life laws banning abortions prior to Roe v Wade punished women. It turns out that’s not true.
Kaine made the claim that states could pass criminal laws to punish women if they decided to have an abortion and indicated abortion bans prior to Roe did just that.
“Governor Pence wants to repeal Roe versus Wade. He said he wants to put it on the ash heap of history, and our young people in the audience were not even born when Roe was decided. This is pretty important before Roe versus Wade — states could pass criminal laws to do just that — to punish women if they made the choice to terminate a pregnancy,” the pro-abortion senator claimed.
Yet that is not the case.
Clarke D. Forsythe, the senior legal counsel for Americans United for Life, has extensively profiled pro-life laws prior to Roe and those laws prohibiting abortions punished abortion practitioners for ending the lives of unborn children, not women.
The political claim—that women were or will be prosecuted or jailed under abortion laws—has been made so frequently by Planned Parenthood, NARAL, and NOW over the past 40 years that it has become an urban legend. It shows the astonishing power of contemporary media to make a complete falsehood into a truism.
For 30 years, abortion advocates have claimed—without any evidence and contrary to the well-documented practice of ALL 50 states—that women were jailed before Roe and would be jailed if Roe falls (or if state abortion prohibitions are reinstated).
This claim rests on not one but two falsehoods:
First, the almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second “victim” of abortion; state courts expressly called the woman a second “victim.” Abortionists were the exclusive target of the law.
Second, the myth that women will be jailed relies, however, on the myth that “overturning” Roe will result in the immediate re-criminalization of abortion. If Roe was overturned today, abortion would be legal in at least 42-43 states tomorrow, and likely all 50 states, for the simple reason that nearly all of the state abortion prohibitions have been either repealed or are blocked by state versions of Roe adopted by state courts. The issue is entirely academic. The legislatures of the states would have to enact new abortion laws—and these would almost certainly continue the uniform state policy before Roe that abortion laws targeted abortionists and treated women as the second victim of abortion. There will be no prosecutions of abortionists unless the states pass new laws after Roe is overturned.
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This political claim is not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.
Why did the states target abortionists and treat women as a victim of the abortionist?
It was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.
The irony is that, instead of states prosecuting women, the exact opposite is true. To protect their own hide, it was abortionists (like the cult hero and abortionist Ruth Barnett when Oregon last prosecuted her in 1968), who, when they were prosecuted, sought to haul the women they aborted into court. As a matter of criminal evidentiary law, if the court treated the woman as an accomplice, she could not testify against the abortionist, and the case against the abortionist would be thrown out.
As Forsythe notes it turns out that only two cases have taken place prior to Roe where women were subject to any criminal prosecution. As he concludes: “There is no documented case since 1922 in which a woman has been charged in an abortion in the United States.”