Diane Feinstein Falsely Claims She Put Women in Jail for Having Illegal Abortions

National   |   Steven Ertelt, Micaiah Bilger   |   Mar 22, 2017   |   12:17PM   |   Washington, DC

Despite the fact that pro-abortion Senator Dianne Feinstein has never been a judge or an attorney, she claimed during hearings on Supreme Court nominee Neil Gorsuch that she sentenced women to jail for having illegal abortions.

This is the second time this year that Feinstein has made the questionable claim.

During the course of hearing here’s what she said:

“Now, I understand that, but here is is what is hard, and let me be very personal about it because this is is important. I have sentenced women to state prison for committing abortion. I was a member when California had an indeterminant sentence law, actually the youngest in the country, and I know what life was like. You have two daughters. I am one of three daughters. And I know what life was like. I have heard of young women killing themselves. I’ve heard of passing the plate in colleges so that a young woman could go to Tijuana to have an abortion.”

Ed Whelan at the National Review first wrote about Feinstein’s comments when she made the same claim in January:

A law professor who was watching the confirmation hearing for Attorney General-designee Jeff Sessions contacted me after he was stunned to hear Democratic senator Dianne Feinstein claim to have sentenced women to prison for abortion in the 1960s. C-Span’s transcript (underlining added; otherwise unchanged) indeed quotes Feinstein as making such a claim:

“okay. as you know, the constitution protects woman’s right to access to health care. i’m old enough to remember what it was like before. when i was a student at stanford and there after. and the early 1960s, i actually sentenced women in california convicted of felony abortion to state prison. for a maximum sentences of up to ten years and they still went back to it because the need was so great.”

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Whelan said Feinstein is not a lawyer and never was a judge. He said her remark could have referred to a time when she served on the California Parole Board in the 1960s.

The problem is no women were ever prosecuted for obtaining abortions in California prior to Roe v. Wade, and there are only two known prosecutions of women for abortions (in 1911 and 1922) in the whole of the U.S., according to research by Clarke D. Forsythe, senior legal counsel for Americans United for Life.

In 2016, Forsythe wrote:

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.

He noted that California and 19 other states had statutes that technically made it a crime for a woman to participate in her own abortion; however, these were not enforced, and even historians who support Roe v. Wade admit this to be true.

“There is no record of any prosecution of a woman as an accomplice even in these states,” Forsythe wrote.

He referred to a 1901 appeals court decision in the District of Columbia that said, ““[b]y its terms, [D.C. Code Ann. § 809 (1901)] applies to the person or persons committing the act which produces the miscarriage, and not to the person upon whom it is committed, notwithstanding it may be done with her knowledge and consent. Not being liable to indictment thereunder, she is not an accomplice in the legal sense.”

Abortion advocates often bring up the possibility of women being punished if abortion becomes illegal again, but past and current laws both show that most pro-lifers do not support punishments for women.  Current abortion bans, such as the ban on partial-birth abortions, do not punish women who have abortions.

While pro-life advocates yearn for the day when unborn children are protected under law and abortions are banned, the pro-life movement has historically opposed punishing women who have abortions — instead focusing on holding abortion practitioners criminally accountable for the unborn children they kill in abortions.