Should we prosecute a mother who has an abortion?
There are legal and moral reasons why the penalty for the mother should be less harsh than the abortionist.
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 Hello, friends. Welcome to the Case for Life podcast. I’m Scott Klusendorf, president of Life Training Institute. And here we try to equip you to defend your pro life views persuasively in the public square. And I want to remind everybody something we’ve been talking about for a few sessions here. The new edition of my book, The Case for Life, Equipping Christians to Engage the Culture, is out.

It is about double the thickness of the previous version. There was nothing wrong with the previous version, but we wanted to update the version to make it more compatible with a post Roe world that we’re in right now. So there are new sections of this book that deal with the worldviews behind the abortion debate, survey of the major thinkers, who are the big guys and gals out there that are assimilating ideas and pressing them down into the culture.

We need to know who those people are and what they argue. And get some ideas on how we might respond. So that’s all in the book, whole section there on what a pro life church should look like, and one that you might find a little bit challenging for you personally, cause it makes you feel uncomfortable, but you know what?

Too bad. There’s a section in there on how to develop a pro life talk so that you can become a pro life ambassador. I get tired of the excuse that people give where they say, I’m just afraid of public speaking, I’d rather be shot. Well, the question we’ve got to ask ourselves is, are any of the reasons we would give for not communicating on abortion worth the price of children’s lives that might have been saved had we been more courageous?

We’ve got to put the children first. And so I equip you to Give a persuasive pro life talk. It’s not meant to make you a star studded speaker. You’re not going to become a celebrity, but you will become effective at communicating your views. There’s a section of that in the book. Lots of new stuff there.

So again, I encourage you to go to Amazon or to Crossway. And pick this book up, The Case for Life, or visit us on our social media sites, and we’ll give you links to obtaining it through us if you want to go that way. Today I want to do something that I wasn’t planning on, but necessity has kind of driven me to do it.

There has been this notion out there that our critics have put out for decades, that if we are truly pro life, we have to be willing to prosecute. women for murder if abortion is outlawed. And this is nothing new. It’s been out there for a long time. But here’s what is new. What is new is there are some opponents of abortion who are saying that if we as pro lifers do not build legislation, that prosecutes women for murder, our whole legitimacy is undermined.

And not only that, we’re being duplicitous. We’re being unfair biblically because the Bible insists that we, uh, apply equal rates, weights, and measures to everything. And they are convinced that we are not honoring the Lord. if we do not prosecute women for murder. And there are small, vocal minorities of pro lifers beginning to buy into this notion.

And what I want to do today is not go after anybody in particular, but I do want to look at what’s, what’s the real deal here? Are pro lifers who say, wait a minute, we need a more prudent approach to prosecution. Are they indeed acting immorally? and unbiblically, or might there be a sense of prudence that’s needed when we start talking about penalties?

And I’m going to argue prudence is needed, and what I want to do is ask this question. What’s wrong with a law that says you can’t intentionally kill innocent human beings, and if you do, there will be consequences. Well, the only rational answer is to say nothing is wrong with a law that says that there should be consequences.

However, what those consequences will be are going to turn on a number of factors and we need to take those into consideration. Because we live in a real world, we live in a constitutional republic, you can’t just snap your fingers and say, Oh, this is the way we honor God here and we’re just going to make that happen and anything else is unacceptable.

We’ve got to work prudently within the world we live in. So what should those consequences be? Well, it’s going to turn on some factors. So let me go through what those factors are. Number one, in order to prosecute a woman for first degree murder the same way you would prosecute a doctor who performs an abortion for first degree murder, you’re going to have to prove a meeting of the minds.

Now, let me unpack what that means. You’re going to have to prove that the woman’s knowledge of the Abortion Act matched exactly the doctor’s knowledge of the act. You’re going to have to demonstrate that she knew what was going on at the same way, in the same way, at the same level as the doctor performing the procedure.

That is going to be a very tough sell. And here’s why. Number one, the doctor performs the abortion. He lays out the instrument. She isn’t aware of all that. She is not aware of exactly how the procedure will be done. Now it’s true there’s a meeting of the minds in that the abortionist and the woman agree that they will have the procedure done.

But beyond that, the meeting of the minds parallel breaks down. The abortionist, as Warren Hearn points out in his book, Abortion Practice, attaches a fetal doppler monitor to measure fetal heartbeat. The woman having the abortion does not hear that fetal heartbeat. She doesn’t hear the fetus speed up the heartbeat and then hear it end when the procedure kills the child.

He also uses ultrasound technology, Dr. Hearn does, and he turns the the monitor away from the mother. toward the operator. She does not see her child being dismembered the way that he does. So again, if you can’t prove that her knowledge of the act matches his exactly, the case against the woman and the doctor is going to get thrown out.

We don’t want that. So, we have argued instead that we ought to go for a lesser charge, not first degree murder, but a lesser charge, in this case, solicitation to procure an illegal act. That’s a fitting charge, and one that should be pursued. Here’s some other problems. In order to convict someone of first degree murder, you not only have to prove premeditation, you also have to prove willfulness, meaning, The killer intends the death of the subject, and you have to prove that the mother deliberately, in cold blood, for no reason, no provocation, wanted the death of her child.

Those are going to be very tough things to prove to secure a first degree murder charge. And so what pro life lawmakers have done historically, in fact prior to Roe, women were not prosecuted for murder. In fact, one historian points out he couldn’t find any state anywhere that, leading up to Roe, prosecuted a woman for murder.

Now, this was not because lawmakers were soft and compromisers. They were after bigger game. They were not out to prosecute the mother as much as they were to shut down the abortion industry. And to do that, They reasoned the most effective method was to shut down the supply, go after the doctors who were doing these procedures, and prosecute them rather than the woman.

And there was one other factor that they brought into play. If you’re going to effectively prosecute the doctor, you’re going to need the aborting woman’s testimony, and you’re not going to get that if she is a co conspirator, if she is being prosecuted along with him in the same way. To get the testimony against the doctor, you need that woman to be immune from the same charge you’re going to charge the abortionist with.

You cannot charge her with murder and charge him with murder and think you’re going to get her testimony to prosecute both of them. Not going to happen. Lawmakers knew that and so they didn’t go for the murder charge. They went for a lesser charge if they charged at all. Then there’s another question of fairness here.

Most women who abort do not sit there in cold blood. I know some do today, and they make an activist show of it on YouTube and TikTok, but that’s not most women. Most women do not sit there and go, I cannot wait to go dismember my own offspring today. And here’s how I plan to do it. And I like thinking about it.

And here’s the method I hope the abortionist will use. That’s not what they do. Most women who have abortions are women who were pressured to do so by a boyfriend, or maybe a clinic counselor, or maybe a university counselor, or some other social worker maybe. or family member. So the question becomes this.

If the woman’s been abandoned by all those people, and they, they don’t help her carry the pregnancy to term, but instead push her to abort, should those people be prosecuted for first degree murder as well? Why is only the woman the one involved here? Why not her boyfriend that pressured her to abort?

Why not a husband that pressured her to abort? These are questions that need to be worked at and lawmakers have recognized that to press a first degree murder charge on the aborting mother is going to raise all kinds of difficult questions about other people involved in this decision. There’s also the issue of laws being unenforceable.

The question is, historically, were DAs and prosecuting judges and attorneys, and juries for that matter, Were they willing to prosecute women for murder who had abortions? And the answer unequivocally was they were not. And in a sense, if you were trying to pass a law back then that made abortion first degree murder, you would not be able to prosecute it then.

And I would argue you’re not going to be able to prosecute it now. I can’t imagine one jury One DA, or any court in the country, in today’s current world, in the real world we live in, that’s going to prosecute a woman for murder if she has an abortion. They should prosecute her, but what those prosecutions should be, should be less harsh than what the doctor is given.

There could be, as I said a moment ago, a charge of solicitation of an illegal act. That makes sense. That’s something she clearly did and that would would not be unfair to charge her with that. But first degree murder is deeply problematic and those saying that we can’t be truly pro life unless we prosecute women for murder are not taking these considerations into Uh, they’re factual analysis.

They’re just pushing for the murder charge. Uh, so a law that’s unenforceable is actually more harmful to the pro life cause than no law that pro that prosecutes for murder at all. I mean, think of our current border crisis. It is against the law to come into this country without proper documentation.

And yet, because the U. S. government, principally the Biden administration in this case, refuses to enforce the law, it’s become a laughing stock. And it’s actually quite harmful. We got people pouring across our borders because they know nobody is going to reinforce the law. Culturally, that’s a disaster.

And there’s another cultural consideration we need to think about here. We are, since Roe v. Wade, 0 for 7 when the issue of abortion is put to the American public for a vote. And this doesn’t mean just 0 for 7 in deeply blue states. I’m talking about red states like Ohio, Montana, Kentucky, and Kansas, all of which have voted against the pro life view when the public was asked to directly respond to the issue since Roe v.

Wade was overturned. And the reason why the public is not with us has to do with the worldview assumptions that make abortion plausible to people are deeply entrenched in this culture. And not only that, There have been a myriad of lies put forward by abortion advocates and the media that are, quite frankly, resonating with the public.

And here’s the two big ones. Pro lifers hate women. And number two, pro lifers want women to die. They want them to rot in jail. They want to prosecute them and let them rot in prison for having an abortion. Those lies are out there, not to mention the lies that say if you have a miscarriage, you’ll be prosecuted for murder.

Or if you have an ectopic pregnancy, you’ll be prosecuted for murder. These are lies the public has believed. In what world is it feasible, given that cultural backdrop, in what possible world is it smart or prudent to lead with a law that says we can’t wait to prosecute women for murder? If they have an abortion, you can’t get pro life laws passed even when we make it clear we’re not going to prosecute women for murder.

For example, the law in Montana that was voted down would have simply protected children who survive abortion procedures. It was a born alive protection act and even there we lost. Why? Because the public was convinced if that law were to be passed and put in, in place that women would suffer, they’d be prosecuted, and the public buys these fear mongering lies, and, and as a result, our legislation loses.

Culturally, women have been told for 50 plus years that abortion is a positive good they ought to pursue. And because of that, it, it’s kind of like driving your car down the road at 100 miles an hour. And you suddenly throw it into reverse to start going the other way. Well, you can imagine the damage that’s done with that and how that doesn’t really help you get to where you want to go.

Rather, what we need to do is turn the car around. We need to do it safely in a way that allows for. a fruitful change of direction, and it is not a fruitful or beneficial cultural move. After women have been told for 50 plus years abortion is a good thing, to suddenly say, Oh, by the way, now if you have one, you’re going to prison, you’re going to the gas chamber.

I mean, that just isn’t a good way to go culturally. And there will be a backlash against that and it’s a backlash that means children will die when pro life legislators and other states get cold feet because they see these ballot initiatives being enacted that says abortion should be a constitutional right or women are going to be prosecuted and they’re going to be thrown in jail and they’ll lose all their rights.

Then what happens is in other states, pro life lawmakers get cold feet and no children get protected then. Why not just pass a law that says we are going to protect all unborn children from conception, and if you have an abortion, yes, there will be consequences, but we don’t charge them with first degree murder, which is unenforceable, not going to be pursued by any DA or any jury, and We run the process of losing the meeting of the mind standard and we also lose the chance, or I should say we lose, um, or I should say we’re up against a real prospect.

The abortionist himself will walk because if we link the mother to the abortionist and the case against the mother crumbles Well, the case against the abortionist crumbles too. So prosecute the doctors for murder, prosecute women for a lesser charge of solicitation of an illegal act, and recognize that culturally that makes sense.

They’ve been told for 50 years abortion’s a good thing. Many of these women have been abandoned by the people who they most need in their moment of weakness, and instead of charging them with premeditated willful murder, We should take a more compassionate and logical approach that says, all right, given the cultural landscape, here’s what we’re going to do.

We’re first going to protect the children, then we’ll work out as more generations come under the new law, we will work out what our penalties ultimately should look like. But for now, a charge of solicitation of an illegal act makes more sense. Culturally, I also think morally it’s the right thing to do given where the culture is, and that would make for a more plausible sale of pro life laws to an American public that quite frankly right now thinks these laws are simply there to destroy women.

So we’re better off, we’re going to save more children if we save them through legislation that does not say we’re going to prosecute the mother for murder. Anyway, those are my thoughts on this and these are topics by the way that are dealt with in some measure in the new book. I hope you’ll pick it up.

And what we’re going to do is news items come up. We will deal with them here. And this is one that has recently come up again. In fact, I’m doing a series of interviews on this very topic coming up in the weeks ahead. And, uh, we may, we may post links to those in our, our social media sites. We’ll see how it goes.

But I look forward to talking to you next time. Be sure to visit our social media sites. There you can get resources. We’re not doing this just to say, hey, aren’t we great? We want to give you the tools you need to make a difference where God has placed you and those sites will help you do that. So until next time, I look forward to seeing you then.