Fetal Exception

Why aren’t women prosecuted for illegal abortions? Readers respond.

Teresa Lewis

Tomorrow evening, Virginia will execute Teresa Lewis for enlisting two men to kill her husband and stepson. On Monday, I challenged Gov. Bob McDonnell to explain why Lewis should die while women who enlist doctors to kill their “infants” are categorically immune to prosecution under Virginia law. Are women responsible for their crimes or not? Is partial-birth abortion “infanticide,” as stated in Virginia law, or not?

McDonnell has ignored the question. In fact, he has rejected another clemency plea from Lewis. But Slate’s pro-life readers, to their credit, have taken the challenge seriously. They have sought to explain why doctors but not women should be prosecuted under abortion laws. Here are their answers, as posted in Slate’s comments forum and other venues.

1. It’s just political pragmatism. Portia Martin agrees that abortion is a contract killing, but she argues that punishing the woman is imprudent:

No contract killings of fetuses, which abortion obviously is. The point of this abolition would be to save lives. Therefore, [it] needs to be passed in whatever way is politically feasible. For now, from a pragmatic standpoint, that might mean restrictions on timing (viability, trimesters, whatever), whatever works to save the most lives. Oh, also? Probably gonna be easier to pass the law that charges the one doing the (many) abortions. …

Jamie agrees:

A bill penalizing women for having an abortion is considerably less likely to pass and to survive review. Holding that fetuses have a right to life doesn’t mean that you can [do it all] in one go. The pro-abortion factions chipped away at the fetus’ rights a little at a time; the anti-abortion factions can protect fetus’ rights a little at a time.

This is a straightforward answer. It implies that down the road, pro-lifers will seek to remove women’s legal immunity. “I’m inclined to say that fully elective, late-in-the-game abortions should be illegal under most circumstances, with the woman also subject to (reasonable) prosecution,” says Pete Edgerton. Nulono asks: “What of the women that are proud of their abortions? Where’s their punishment?” And Secularprolife.org answers: “Currently? Nothing. I suppose, when the right to life is restored, courts could take lack of remorse into consideration.”

2. We can’t prosecute women because courts won’t let us ban abortion. “Abortion is unfortunately legal and even constitutionally protected,” argues Conservatarian. “The governor cannot punish women who get abortions.” Wrong. The Supreme Court says it’s constitutional to ban partial-birth abortions. The 4th Circuit has upheld Virginia’s ban.

3. Even if we can ban abortion, courts won’t let us prosecute women. Mike Bluffy says the Virginia law “is deliberately crafted to prevent and criminalize abortion without outlawing abortion so as to pass constitutional muster.” Secularprolife.org adds:

When the federal government defended its partial-birth abortion ban, it could not argue that it was protecting the right to life of late-term fetuses; Roe and Casey had effectively closed that door. It instead had to rely on secondary interests, among them maintaining the integrity of the medical profession. This interest would justify punishing abortionists, but it wouldn’t justify punishing clients.

Actually, the Supreme Court ruled that the government can ban partial-birth abortions because of their “disturbing similarity to the killing of a newborn infant.” The court said nothing about whether women could be prosecuted for their role in the crime.

4. It’s rational to target the sellers. “Maybe the ban is more directed at the abortionist” because it’s “like cops going after drug dealers rather than users,” suggests lhrmd2. That’s a sensible way to allocate police time. But it’s a crazy basis for writing into law an airtight ban on prosecuting users. Often, to nail a seller, police need users’ cooperation. How do they get that cooperation? By threatening to prosecute the users. Virginia has taken that leverage away.

5. If women can be prosecuted, they won’t testify against abortionists. The woman “is often the only witness” to what the doctor did, argues Rachel MacNair. “The abortionist will try to make her an accomplice in order to knock out her testimony. Those wanting to stop the abortionist will want her testimony in, with no need to plead the Fifth.” But the same could be said of any conspiracy, including the Lewis murder plot. We cut a plea deal with Conspirator A to nail Conspirator B. What we don’t do is let Conspirator A walk, because we take murder—unlike “partial-birth infanticide”—seriously.

6. Women are innocent because doctors deceive them. Virginia’s informed-consent law requires doctors to tell women about their fetuses and the abortion procedures that will be used. Secularprolife.org points out that it’s foolish to assume that a doctor “who performs a partial-birth abortion in violation of state and federal law” will obey the informed-consent law. That’s true. It’s foolish to assume that any lawbreaker will deal honestly with his co-conspirators. That’s why we conduct investigations and trials to resolve who said what and who knew what. But we don’t pre-emptively forbid prosecution of one of the conspirators.

7. Women who get abortions are desperate. “The situation of an aborting woman is presumed to be immediately desperate, physically and emotionally,” writes M. Maybe so, but we don’t categorically shield other felony lawbreakers from prosecution. I bet Lewis was pretty desperate. McDonnell is sending her to her death anyway.

8. Women who get abortions are coerced and remorseful. MacNair notes that “women who’ve had abortions are a major constituency group of the pro-life movement.” Consequently, pro-lifers “are accustomed to hearing individual stories about how traumatizing the abortion was to these women, and what kinds of social pressures they faced.” Secularprolife.org agrees:

Punishing the abortionist, who always knows exactly what he is doing and is never coerced, is the better strategy. I’d rather let many remorseless people go free than imprison one person who has remorse, who was forced by a boyfriend, who trusted the abortionist when he said it was a “clump of tissue,” etc.

That’s pretty generous. Would you extend the same generosity to Lewis? She, too, expresses remorse and claims she was pressured into the murder plot by a male co-conspirator. But McDonnell isn’t cutting her any slack. Do pressure and remorse count only when the crime is abortion?

9. The doctor will kill again, but the woman won’t. “An abortion doctor kills many more fetuses than any of his or her patients, so it makes sense for the law to punish the doctor more,” argues Jamie. Portia Martin agrees: “Why in the world would a pro-lifer insist upon a law that criminalizes the woman’s act, which might occur once or twice a lifetime and which makes the bill unpassable, rather than the abortionist’s behavior, which he might engage in many times a day?”

Again, if that’s true, it’s an argument for pardoning Lewis. If she were released, she’d probably never plot another murder. But she isn’t being released. She’s being executed, while her triggermen got life sentences instead.

10. For women, abortion is punishment enough. “I hope Saletan someday meets a woman who regrets her abortion,” writes Secularprolife.org. “He’ll quickly realize that she’s been through punishment enough.”

I’ve met such women. I don’t think they deserved punishment. I don’t think their doctors did, either. How about Lewis? Are her symptoms—flashbacks, insomnia, anguish—punishment enough?

11. Women who get abortions are in denial. M says, “[T]he aborting woman usually has no relationship with her unborn child and pretends he is not a baby.” You can make that argument about a specific defendant if you have the evidence. But to justify shielding all abortion patients from prosecution, you’d have to show that they’re all in denial. Start with Slate commenter Sally Lichtenstein, who writes: “I was perfectly aware that the fetus in my uterus would someday become a baby. That’s why I aborted it—because I didn’t want a baby and didn’t want to give birth. Don’t insult me by telling me that I didn’t know what it actually was.”

12. Abortion’s legality prevents women from realizing that abortion is killing. “The governor is quite correct that women are more excusable for abortion than for other sorts of killing,” argues Richard. “After all, they are surrounded by an enabling society. ‘If it’s legal, it can’t REALLY be murder,’ seems to me a perfectly sensible thing for women facing a crisis pregnancy to think.” But partial-birth abortion isn’t legal in Virginia. It’s banned by federal and state law, certified as “infanticide,” and punished by a jail sentence of two to 10 years for the doctor. Isn’t that pretty clear?

13. The abortion industry prevents women from realizing that abortion is killing. Ryan Bomberger, the man behind the recent billboards depicting abortion as genocide against blacks, writes in response to Monday’s challenge:

When the abortion industry spends much of its web presence, media influence, and lobbying efforts to convince the public that abortion is NOT murder, and that the “product of conception” is simply being removed, who is at fault for the perception that murder isn’t even taking place? This article is based upon the supposition that men and women even understand that life is even truly at stake. Some do. Many don’t. … Perhaps look at the ones, like Planned Parenthood, in every facet of American life, who utilize every means necessary to keep (particularly) women from knowing the truth (i.e. ultrasound legislation) …

I’ve endorsed the provision of ultrasound and argued that couples should look at what they’re destroying. But Virginia mandates plenty of information for anyone considering abortion. And read Sally Lichtenstein’s post again. She’s absolutely clear-eyed. If she hires a doctor to perform an illegal abortion, why shouldn’t she be prosecuted?

14. Abortion isn’t as clearly wrong as murder. “There’s a lot of social confusion about whether or when abortion is murder,” observes M. Francis agrees:

There are some abortion opponents who believe it should be punished with a life sentence or the death penalty, and those people are on the fringe of the pro life movement. … To a lot of people, abortion is murder, but a different kind of murder. … [T]o many a pro life advocate, abortion is killing a human life, but it’s not the same as killing a person outside of the womb. For one, many people don’t consider abortion, even partial birth abortion, killing at all, and that debate within society itself lessens the severity of the act.

Dave Hiller adds:

An unborn child is still a distinct human being, and therefore I believe it should have the rights any other human has. However, I acknowledge that this is not cut-and-dried, and even if some or all abortions are illegal I have no problem with the punishment reflecting the fact that we have a better understanding of the rights of infants than the rights of a fetus. … Even though I am anti-abortion (and I believe I have a natural and scientific reason for that stance) I am not as sure that I am correct here as when I say that murder of an infant is wrong. Therefore, I have to balance the wrong of murdering the fetus (if the killing is truly wrong) against the wrong of imprisoning the mother (if the killing is not in fact wrong). That leads me to be hesitant to impose drastic penalties.

That’s pretty much what I suggested Monday. Once you get beyond the rationalizations—that women don’t know what they’re doing, that they’re all coerced, that they’re just occasional users—you have to admit either that they should be subject to prosecution or that abortion isn’t murder. And if they’re getting a pass, the next question is why Lewis is getting the needle.

(Three other answers worth reading: Maggie Norris had a miscarriage and found that “the aborted fetus was not treated as a person” at a Catholic hospital. Scott Lemieux  says pro-lifers excuse women because they “don’t believe that women are rational moral agents.” And David Muccigrosso blames “obfuscation and blustering on both sides—the one about it not being truly a life, and the other saying it’s a precious little gift from a magical bearded man in the sky.”)

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