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Punishing Women for Abortion

April 16, 2011

A regular point of contention here and elsewhere in the blogosphere is whether the criminalization of abortion will result in women being jailed for abortion.  I think a recent case from Indiana suggests there is some ground for concern.  Here is a summary of the case, as reported by the Guardian:

Bei Bei Shuai, 34, a restaurant owner who moved to the US from China 10 years ago, was pregnant and planning to marry her boyfriend until she learned late last year that he was already married and he would be abandoning her. A few days later, on 23 December, she went to a hardware store, bought rat poison pellets, went back to her flat in Indianapolis and swallowed some. But she did not die immediately and was persuaded by friends to go to hospital.  She was given treatment to counteract the poison and gave birth on New Year’s Eve, but her daughter, Angel, suffered seizures and died after four days.  Shuai then had a second breakdown and spent a month in a psychiatric ward, after which she left to stay with friends and began rebuilding her life.  But in March she was arrested and charged with murder and attempted foeticide. She now faces life imprisonment.

According to the Indianapolis Star, the baby was delivered by C-section in the hospital and put on life support which was removed three days later.   That the child was born alive and then died somewhat complicates matters, but the connection with abortion was made by the prosecutors (again according to the Indianapolis Star):

Prosecutors argued during opening statements this morning that Shuai left a suicide note and intended to kill herself and her unborn child, which constitutes murder.

Predictably, pro-abortion voices such as the ACLU are up in arms.  However, beyond a barebones report on LifeSite News and a few other blogs, I could find no substantive discussion of this case anywhere in the pro-life world.  (I would be happy for a correction to this.)

I am very disturbed by this prosecution:  it seems to serve no rational purpose to punish a woman who seems to have severe mental health issues.   And it does suggest that at least some prosecutors, should abortion be recriminalized, will want to prosecute the women involved.    If we are going to rebuild a world that is both pro-woman and pro-life, then this tendency has got to be stopped now.  The pro-life movement needs to speak out loudly and clearly on this case and oppose prosecution.

  1. ben permalink
    April 16, 2011 11:10 am

    Should the boyfriend be prosecuted for adultery? He seems to be the one most at fault here.

    • David Cruz-Uribe, SFO permalink
      April 17, 2011 5:13 pm

      I am not sure prosecution is the answer, but societal condemnation would be a good start.

  2. Ronald King permalink
    April 16, 2011 11:21 am

    David, I am in total agreement with you. The judge, jury and prosecutor exhibit, in my opinion, a lack of empathy. What happened with her defense attorney? Where is justice without empathy? There is none in this case. I could explain myself more, but I think the explanation is self-evident.

  3. April 16, 2011 12:58 pm

    Suicide is one thing. Bringing other people down with you is another. Many spree shooters who kill themselves at the end have a “serious mental health collapse.” Should they not be charged for their murders in the event they survive.

    • David Cruz-Uribe, SFO permalink
      April 17, 2011 5:15 pm

      It is not clear to me that these cases are exactly parallel: a spree shooter sets out to kill others first; in this case I think she set out to kill her self and killed her child in the process. The question of her intent needs to be examined very closely.

      • April 18, 2011 8:47 am

        Of course, I think this woman was mentally disturbed and so it is a good question as to how responsible she should be held for her actions. But no matter what her intent was, it doesn’t get her totally off the hook. Say she had decided to immolate herself in her apartment, panicked and fled before she was seriously injured, and the apartment building burned down, killing other people. She could no doubt be found guilty of some kind of homicide, even if she didn’t know there was nobody home in the building.

  4. April 16, 2011 1:01 pm

    Pro-lifers should be able to say, specifically, what consequences under the law women and doctors should face for having/performing an abortion. To be asked this is perfectly legitimate.

    • brettsalkeld permalink*
      April 16, 2011 1:13 pm

      In my recent post on this topic I mentioned the ‘hiring a hit man’ model as a possibility. I was surprised that this idea got no feedback.
      Of course, I also mentioned that under most circumstances the law would likely find extenuating circumstances for the woman. I think this would be even more true if abortion was illegal.

      • April 18, 2011 8:43 am

        In my recent post on this topic I mentioned the ‘hiring a hit man’ model as a possibility. I was surprised that this idea got no feedback.

        It got no feedback because for most pro-lifers, holding a woman responsible for procuring abortion in any way whatsoever is anathema. There are alternatives to incarceration, by the way. What about sentencing a woman who procures an abortion to community service working in crisis pregnancy centers or taking care of children?

        • brettsalkeld permalink*
          April 18, 2011 1:17 pm

          I could go for those. There may be situations, of course, where that would be psychological disastrous, so it would need to be a case by case thing.

          Reminds me of a woman I know at may parish who was a “family doctor” in China. When she came to Canada she had all the qualifications to become a doctor here, but, following her conversion, couldn’t do it. She has retrained and works as a midwife.

      • Cindy permalink
        April 18, 2011 8:25 pm

        After being a doctor, she had to retrain to be a mid-wife? How so?

  5. hazemyth permalink
    April 16, 2011 2:14 pm

    This is perhaps the most troubling point, to my mind:

    Shuai’s charges could deter other pregnant women from seeking prenatal care if they felt they could be prosecuted for mistreating their fetus, said David Orentlicher, Samuel R. Rosen professor of law at the Indiana University School of Law-Indianapolis and co-author of the brief.

    “The goal of these prosecutions is to promote fetal welfare, but in fact it’s more likely that they will endanger fetal welfare, because now pregnant women may have to be worried because a trip to the doctor’s office may end up as a trip to jail,” he said.

    How important is the question of whether or not killing the child was a goal of her actions? And what implications does this have for other behaviors that might (less obviously) endanger the health of an unborn child?

    • April 16, 2011 4:04 pm

      If the lives of the unborn have the same moral value as the lives of the “post-born,” from the pro-life point of view, why should there be any difference in the responsibility of a pregnant woman for the welfare of her child than for a woman with “post-born” children. If a pregnant woman abuses drugs and her child is born a drug addict, why should she be treated any differently than a mother who is a drug addict and hooks her own children on addictive drugs?

  6. April 16, 2011 2:43 pm

    “But I feel that the greatest destroyer of peace today is abortion, because it is a war against the child—a direct killing of the innocent child—murder by the mother herself. And if we accept that a mother can kill even her own child, how can we tell other people not to kill one another?” —Mother Teresa

    ”We must not be surprised when we hear of murders, killings, of wars, or of hatred. . . . If a mother can kill her own child, what is left but for us to kill each other?” —Mother Teresa

    “There are two victims in every abortion: a dead baby and a dead conscience.” —Mother Teresa

    • Ronald King permalink
      April 16, 2011 5:42 pm

      As much as I love Mother Teresa, I must disagree with her first two statements above. Abortion is the end result of murders, killings, wars and hatred and many “lesser evils” like poverty, abuse, bigotry, prejudice, etc., or any other form of violence that is opposed to the support and validation of life.

      • April 18, 2011 8:11 am

        But it is also the result of a moral choice of one or more people who also has moral agency.

        I sometimes fear we’ve gone too far with the “two victims” talk. Yes, it is true that various societal evils contribute to abortions.

        But it is also true that each abortion is a terrible evil in its own right, regardless of what led to it.

    • hazemyth permalink
      April 17, 2011 2:12 pm

      There are strong arguments against abortion but the first two quotes are not among them, as moving as they may seem. Pro-choice proponents have articulated ways of ethically distinguishing between abortion and murder (believing, as they do, that abortion is not murder).

      Arguing that people who support the choice to have an abortion have no morale grounds to oppose other forms of killing is as facile as arguing that people who believe in banning abortion have no respect for women’s freedom of choice whatsoever.

  7. M.Z. permalink
    April 16, 2011 3:11 pm

    The court system has the ability to address mental illness.

  8. April 16, 2011 3:23 pm

    The pro-life movement does not want to face the logical consequences of claiming that the killing of an unborn child is morally equivalent to the killing of a newborn baby or an adult. They have created the concept of fetal rights, but apparently want to say—in complete self-contradiction—that a fetus has rights except when the mother does not want it to.

    It is one thing to take a pragmatic approach in the attempt to criminalize abortion and face the fact that it is highly unlikely the American people, even if they consent to criminalizing abortion, will never stand for prosecution of women who procure abortions. It is quite another thing to maintain that if abortion is criminalized, women should not be legally accountable on the grounds that they are not morally accountable.

    Many pro-lifers who argue for criminalization of abortion do so on the grounds of justice. Even if criminalizing abortion would not lower the incidence of abortion, it is unjust for the law not to protect “a whole class of persons.” And yet, if abortion is murder, what do laws say that protect this “whole class of persons” from everyone except their own mothers? For those who believe that the law must not only maintain order but teach, what does a law against abortion teach women if it allows them to kill their own children with impunity?

    The Church excommunicates women who procure abortions, and interestingly, in canon law it the woman who procures the abortion who commits the offense and it is the abortionist who is the accomplice. Yet in civil law, pro-lifers want to prosecute the abortionists as criminals and not even consider the women who procure abortions as accomplices. I fully agree with those who argue that canon law was not written to be turned into civil law. The point, though, is that canon law holds a woman who procures an abortion as morally responsible for her acts, yet pro-lifers argue that women who procure abortions are victims.

    The argument has been made that the excommunication of women who procure abortions is an act of love on the part of the Church, intended to nudge women who procure abortions to reconcile themselves to the Church by going to confession. Yet let’s looks at the list of persons who incur latae sententiae excommunication:

    • an apostate from the faith, a heretic, or a schismatic;
    • a person who throws away the consecrated Eucharistic species or takes and retains them for a sacrilegious purpose;
    • a person who uses physical force against the Pope;
    • a priest who uses confession as a pretext to solicit the confessor to break the commandment against adultery;
    • a bishop who ordains someone a bishop without a pontifical mandate, and the person who receives the ordination from him;
    • a confessor who directly violates the sacramental seal of confession;
    • a person who procures a completed abortion; and
    • accomplices who are not named in a law prescribing latae sententiae excommunication but without whose assistance the violation of the law would not have been committed.

    I find it difficult to buy the argument that excommunication is a loving call to repentance.

    • brettsalkeld permalink*
      April 16, 2011 6:13 pm

      but apparently want to say—in complete self-contradiction—that a fetus has rights except when the mother does not want it to.

      Is this a typo?

      • Thales permalink
        April 17, 2011 10:05 pm

        but apparently want to say—in complete self-contradiction—that a fetus has rights except when the mother does not want it to.

        I think David means it, but it’s curious, because I think it’s exactly the opposite: I find that abortion advocates are the ones who say that a fetus has rights except when the mother does not want it to. The mother’s will is one of the primary rationales given when an abortion advocate attempts to explain the difference between a week-35 newborn infant and a week-36 “clump of cells” that can be eliminated via abortion. It’s pro-lifers who say that the rights and dignity of a human being are not dependent on someone’s will, but are derived from the fact that this entity is a human being and not something else.

      • April 18, 2011 8:32 am

        I am speaking practically, not theoretically. For example, I have raised the question about the abortion pill. Pro-lifers want to punish the abortionist, not the woman who procures an abortion. But with the abortion pill, there is no abortionist. The usual answer from pro-lifers is to go after those who sell the pill. A chemical abortion actually requires two drugs, each of which have uses other than to induce an abortion.

        Question: If you can’t prosecute a woman for procuring an abortion, and you can’t prosecute her for procuring a chemical abortion under the guidance of her doctor, then can you prosecute her for administering the abortion pill(s) to herself, or for buying the pills?

      • Thales permalink
        April 18, 2011 1:52 pm

        But, David, why prosecute her at all?

      • April 18, 2011 2:58 pm


        Because you can’t prosecute a pill, and when women obtain and self-administer the abortion pill, unless you prosecute them, their abortions will be perfectly legal. I suppose you could make possession of the abortion pill illegal, but if you are not going to prosecute women for having abortions, why would you prosecute them for having pills?

      • Thales permalink
        April 18, 2011 9:26 pm

        I think we’re talking past each other. I agree that you can’t prosecute a pill – even abortifacient pills – just as I don’t think you should prosecute adultery, sodomy, contraception, masturbation. That was my point when I said “why prosecute her at all.”

  9. April 16, 2011 3:58 pm

    We don’t all argue that, David. Some do, usually trying to be pragmatic, or saying what is emotionally “correct” at the time.

  10. Thales permalink
    April 16, 2011 5:05 pm

    Suppose a situation identical to this one, except the woman has a newborn infant instead of a late-term fetus. Everything else is the same: she finds out her boyfriend would be abandoning her, she despairs and takes poison and gives her infant poison, she goes to the hospital and is saved, the infant unfortunately dies a few days later, she recovers and is treated for psychological problems. What does everyone think should happen here? What should be the law here? Should she be charged or not charged? Is this different from the real-life situation, and if so, why?

    (I’ll give my answers later when I have more time to write them out. I’m curious to see what people think.)

    • April 17, 2011 1:14 am


      I think she would be prosecuted for killing the baby, although I doubt that she would be charged with first-degree murder. How about the case a few days ago of the woman who drove into the Hudson River with her four kids in the car? The 10-year-old boy escaped. What if the mother had changed her mind as the car was sinking and managed to save herself? Does anybody think she would not have been prosecuted?

    • hazemyth permalink
      April 17, 2011 2:34 pm

      I understand the arguments favoring morale equivalency between these instances and the instance reported above but I think any such argument, to be entirely persuasive, needs to take into account any differences and explain why these differences don’t matter.

      In your example, Thales, the woman proactively gives the drug to her child, whereas in the example above this is arguably just a byproduct of her attempted suicide, without further action on her part. In your example, David Nickol, the mother needn’t have the children in the car with her to commit suicide. In either of these instances, it would be possible for the woman to commit suicide without (directly) harming her children. Perhaps the appropriate distinction means a reduced charge, as David Nickol suggests.

      As I mentioned above, arguing that unborn children should be regarded in the same terms as born children, opens up a variety of questions. As an example, should it be illegal for expectant mothers to smoke or drink, in much the same way that is sometimes illegal to give cigarettes and alcohol to children?

    • Thales permalink
      April 17, 2011 10:43 pm

      To answer my own hypothetical: I think it is a good thing to have a law prohibit the killing of an infant. But the law is a statement of general application, and that means that the law is necessarily imperfect and that it will cover different cases where the justice or injustice of the case differs greatly. For example, the serial killer who dismembers an infant is a much different level of injustice from the insane depressed mother who drives her car with her baby into the lake, even though both persons have violated the exact same law against murder and may be prosecuted for the exact same crime. Hopefully, in our society, the prosecutor can exercise discretion in pursuing a case and a judge can exercise discretion in sentencing, so as to craft a mitigated punishment for the mother versus the serial killer. For the mother who poisons her baby who I described, I would hope that there would be mitigating circumstances for her, since it is likely that she is psychologically disturbed.

      Taking the life of someone is a sad thing – because someone who has the right to life has just lost it. Now we have a law that makes murder illegal. One of the functions of this law is to stop more people from being killed. And that’s a very good thing in an of itself. A second function of the law is to punish the person who committed the murder. But the person who committed the murder is not always punished the same way: the prosecutor might not decide to prosecute or might seek to prosecute under a lesser crime; a judge might decide to give a lenient sentence; there might be a determination that the murderer is insane and shouldn’t be punished at all. And it is a good thing that the murderer may get different punishments depending on the particular circumstances of the case.

      I think all of these considerations can be applied to the abortion context. I think a law prohibiting abortion would be a good thing due to the law’s first function I described above: fewer human beings would be killed compared to our current society of legalized abortion. And when it comes to the law’s second function I described, ie punishment, I think that the law shouldn’t require jail time for women who had abortions because to do otherwise would be imprudent for a variety of reasons, including the fact that it would bring the law into disrepute; the fact that women seeking abortions need compassion and not jailtime; and the fact that in most abortions, there are mitigating circumstances for the woman’s guilt.

  11. Ronald King permalink
    April 17, 2011 8:33 am

    The choice to prosecute and who to prosecute is quite clear in these situations if one looks at it in black and white. When doubt creeps in then what to do becomes ambiguous. What is the nature of the doubt? What is justice? Is justice to be punishment or revenge? Or is justice to be something else? I am not at all familiar with the law but I am familiar with the dynamics of human behavior, therefore it seems to me that justice must first begin with a compassionate understanding of human behavior before we begin to establish who is guilty of what and what consequences are to be imposed on the persons involved.

    • Cindy permalink
      April 17, 2011 1:03 pm

      Hi Ron,

      I think when you are dealing with the law, justice is punishment. That is how you show ‘justice’ to the victim, by punishing the perp. Again though, it’s no secret that I sincerely hold the belief that if you pass laws changing the legality of abortion you would have to criminalize it.

      • David Cruz-Uribe, SFO permalink
        April 17, 2011 5:30 pm

        Cindy, If we pass laws making abortion illegal, I think that the moral complexity will require us to create laws that, in some sense, give women a pass. From a moral point of view not ideal, but law and morality often do not line up well.

      • Cindy permalink
        April 18, 2011 8:28 am


        I agree with you that law and morality do not always line up. This particular case that you have put forth, shows that this woman tried to kill herself. I wonder what it must have been like to come to a country. I wonder how well she understood the language. She meets and man and feels like she has a bright spot in her life. She probably fell in love, only to later on realize that she was taken advantage of, used and duped by him. He was already married. Something she didnt have knowledge of. She tried to kill herself. If she wanted to just have an abortion, she could have went that route much earlier. So this case shows that my theory is probably the correct theory. It’s already happening.

    • April 17, 2011 1:47 pm

      If, objectively, abortion is murder, it is not up to those who write the penal code to decide who is innocent due to extenuating circumstances. It’s up to juries.

      • Cindy permalink
        April 18, 2011 8:31 am

        Juries thoughtfully selected by a good prosecuter. Move it to a more conservative leaning say Southern State, who regard their ideology as part of their general make-up of fairness… and I suspect what I supsect will happen.

  12. April 17, 2011 1:31 pm

    Joe Carter over on First Things expresses well a very common sentiment among pro-lifers:

    Those of us in the pro-life movement often claim that we live in a “culture of death.” But most of us don’t believe it. Not really. We may use the phrase as a rhetorical tool, but deep in our hearts we think that our family, friends, and neighbors wouldn’t knowingly kill another human being.

    We convince ourselves that they simply don’t realize what they’re doing. If only they could see—and honestly look at—the ultrasound pictures of an unborn child. If only we could convince them that what they consider a “clump of cells” is a person. If only they knew it was a human life they were destroying. If they only knew, they wouldn’t—they couldn’t—continue to support abortion.

    But they do know. And the abortions continue. [Emphasis in the original]

    It is quite common for pro-lifers to maintain that there is really no disagreement over when life begins. Those who are pro-choice or pro-abortion know that abortion is murder. They simply lie about it so that abortion can continue.

    However, when the discussion turns to the women who have procured abortions, they don’t know what they have done. They have been duped by society or the “abortion industry” into believing that abortion is not the killing of a human being. Apparently, according to pro-lifers, everybody knows that abortion is murder except the women who procure abortions.

    • Thales permalink
      April 17, 2011 10:52 pm


      I’m not exactly sure about the point you’re making about this. The First Things article acknowledges that some women who have abortions are fully aware that abortion is the killing of a human being and that in getting an abortion, they have killed their unborn son or daughter. But the article ends with the observation that these women are gravely mistaken not about the fact that they killed their unborn son or daughter, but that this killing was a good and loving thing for them to do to their son or daughter. Sadly, in our society, many parents can be mistaken in thinking that it would be better off or more “loving” of them to kill a son or daughter rather than to let them live. Think of the Robert Latimer case, or the woman who drove her car into the lake with her children in it.

      • April 18, 2011 8:35 am


        Don’t we prosecute mercy killing, no matter how much of a good deed the killers believe they are doing to relieve the suffering of the victim? It may be the case that a jury acquits someone who has committed a mercy killing, or convicts them of a lesser crime, or the judge may show leniency. But we don’t let people off scott free because they felt that killing someone was a good thing to do.

      • Thales permalink
        April 18, 2011 1:55 pm

        Yeah, we prosecute them – because they violated a law against first-degree murder. But the point about the mercy killing is that parents can knowingly and willingly kill their children, even based on a mistaken notion of “love”.

  13. Maureen O'Brien permalink
    April 17, 2011 4:44 pm

    Shuai DID NOT abort. She gave birth. The title of this blog seems to indicate that an abortion took place. In fact if Shuai did elect to terminate her pregnancy she would not have been prosecuted.

    • David Cruz-Uribe, SFO permalink
      April 17, 2011 5:33 pm

      I am less than sure of this: the DA has filed two charges: first degree murder and foeticide. Presumably, had the child died in utero he could have pressed the latter, and might still have tried for the former.

      But if your point is that she could have had an elective abortion, yes, she could have. As the discussion should make clear, this case is not about abortion, but has direct implications for the discussion about abortion.

  14. David Cruz-Uribe, SFO permalink
    April 17, 2011 5:28 pm

    The question of what the justice system should do if the child had been born before the suicide attempt has already come up. These sorts of cases crop up from time to to time: Susan Smith in South Carolina and Andrea Yates in Texas come to mind. What is interesting is that there are often two competing narratives, one of which focuses on the heinousness of the crime and the other on the parlous mental state of the mother. I am partial to the second over the first, if only because it provides context and understanding, though in the end perhaps neither extenuation or mitigation.

  15. Ronald King permalink
    April 17, 2011 6:05 pm

    You take away oxytocin and the mother will not bond to her child. You expose a young female child to a consistent history of verbal and/or physical abuse the prefrontal cortex area of the brain will be inhibited from full development and consequently, the areas in that part of the brain that are responsible for problem-solving and impulse control do not mature. When that happens, anything can happpen.
    So we have man’s justice and God’s justice, there is a difference. As Christians what are we supposed to follow?
    Hi Cindy.

    • Cindy permalink
      April 18, 2011 8:43 am

      Even if it’s just verbal abuse, the prefrontal cortex area of the brain will not fully develop? That means never? Even if they receive extensive therapy later on in life?
      I would think as Christians Ron, we should always look to heal or re-habilitate. Yet, look at our law’s as they are. You have crack users in and out of prisons and jails. The fines rack up, their licenses are revoked. Yet never do they get the treatment that they really need. They just shuffle them through the system and maybe after 14 times of lock up or so, maybe then some judge might order them into some rehab program paid for by the state. It’s just too costly I suspect. It should be mandatory that inmates that get locked up should go to a treatment center for their addictions. Yet that is not how our laws work. We all know better than that. That’s half the problem. So why would I suspect anything less, when it comes to woman?

      • Ronald King permalink
        April 18, 2011 1:35 pm

        Cindy, I did not mean to imply that the PFC would never fully develop, it can under the right environmental and medical conditions. For example, there are inpatient programs that use the latest brain and nutritional research to determine what areas of the brain have been damaged or lack maturity. From that knowledge they will administer intraveinous nutritional substances that by-pass the blood-brain barrier and will have positive physical results within one week of this treatment. These nutritional supplements actually physically stimulate the brain to grow new neural connects and help create a proper balance of neural chemistry. At that point the person is then able to learn new methods of coping with life. Without the IV it might take a year or more to produce the same changes in the body and brain within the same hospital setting. The rest of the program then is devoted to learning cognitive behavioral skills to help them cope with the stressors they face in the outside environment.
        We have mutated genes that prevent the absorption of vitamins and minerals that are critical for the synthesis of neurotransmitters which are essential for a healthy brain. Early childhood stress also determines how genes are going to be expressed and wire the brain for that particular environment and we become what we are not meant to become and the internal and external battle rages on. As one vet said, “Where there is mystery there is no mastery.”

  16. Paul DuBois permalink
    April 18, 2011 7:01 am

    I suppose what I find most troubling is that we will argue endlessly on whether or not this mother, or Susan Smith or any other should be prosecuted. But little time is ever given to the constantly shrinkage mental health and social work budgets. It would seem some mention should be made that less and less help is available to people who find themselves in trouble. Social workers constantly have a hard time finding work, and those that do often burn out because they are over worked, underpaid and have limited resources available to help people like these women who desperately need help.

    There is only one reason a justice system exists. That is to protect us against those who would hurt or take from us. It cannot hand out justice as most of us are not capable of knowing what is just in a given situation. Many of the women who kill their children or themselves do so because they see no other option for themselves and cannot see leaving their children in a situation that caused themselves such great despair. They see it as an act of mercy or love, not hatred or violence.

    The only reason to incarcerate a woman who has had an abortion would be to stop her from having another. There would seem to be more cost effective ways to accomplish this same goal.

    • April 18, 2011 8:08 am

      The only reason to incarcerate a woman who has had an abortion would be to stop her from having another.

      This is a rather narrow view of legal punishments. One very good reason to incarcerate a woman who has an abortion (if abortion is indeed murder) is to deter other women from having abortions. If the sole reason for putting someone in prison were to make sure he or she did not commit the same crime again, prison sentences would be more rationally determined not by the seriousness of the crime but rather of the likelihood that the offender would commit the same crime again.

      • Paul DuBois permalink
        April 18, 2011 2:52 pm

        Do you honestly believe any threat of punishment would stop a mother from killing her child? Do you think these are acts calculated and thought through beyond the act of ending the person’s suffering? The comment on the punishment of a mother who has had an abortion was ot to the main point, but a reference to the comparison made. I still believe abortion is murder. I also believe our concept of “justice” is more related to revenge than justice. If we seek justice, we must first learn compassion.

        As I have no idea what anguish went through the mother’s mind before she killed her child, or what anguish a women does or does not go through before or after having an abortion I am unable to met out justice. I think we need another way to reduce the number of abortions and the base mental ilness issues that cause mothers to kill their children.

    • April 18, 2011 9:01 am

      And as I argued above, incarceration is not the only legal punishment. Community service working with pregnant women or with children would be an excellent sentence for a woman who procured an abortion. Or there could be some kind of “reeducation” program a woman would be required to go through. According to pro-lifers, a woman who has an abortion suffers “post-abortion syndrome.” She could be required to go through some kind of mandatory counseling. From my point of view, “reeducation” and counseling would be objectionable—somewhat akin to political “reeducation.” But from a logically consistent pro-life point of view, requiring absolutely nothing regarding a woman who procures an illegal abortion makes no sense at all.

      There is a growing trend in the pro-life movement to require all kinds of “education” of a woman contemplating abortion about the fetus being a human being, being capable of feeling pain, getting the woman to look at an ultrasound image, and so on. From the pro-life point of view, why would it be unthinkable if abortion is criminalized to require a woman to be “educated” about what she has done?

      • Thales permalink
        April 18, 2011 1:59 pm

        David, you keep saying this: But from a logically consistent pro-life point of view, requiring absolutely nothing regarding a woman who procures an illegal abortion makes no sense at all.

        And I keep saying this: no, it’s not illogical to have the civil law NOT punish people for committing grave moral evils — many grave moral evils are not punished for a variety of reasons.

      • Cindy permalink
        April 18, 2011 6:19 pm

        I’d like to hear some examples of those grave evils that go un-punished. The only one I can think of is the grave evil of WallStreet not being in jail.

      • Cindy permalink
        April 18, 2011 8:28 pm

        I dont understand this. Why would a murderer be given community service, unless from some place deep down, one isnt totally in line with it being a murder? I dont understand this at all. If it’s murder, then it’s murder right? Or am I mistaken?

      • Thales permalink
        April 18, 2011 9:28 pm

        Grave evils that go unpunished include: adultery, promiscuity, most sexual sins, lying, murder committed by an insane person.

  17. April 18, 2011 8:06 am

    Perhaps we should be more concerned by the millions of other abortions for which nobody was punished.

  18. April 18, 2011 9:49 am

    It’s posts like this that absolutely drive me nuts.

    We have a current legal regime in which a million unborn children are killed with no legal repercussions for anybody. This is happening now.

    But we shouldn’t obsess over that. Instead, we should be concerned that a woman who did in fact try to kill her unborn child is being held legally responsible for that, and what that may lead to.

    Well, we know what the current legal regime has led to.

    I agree that criminalizing abortion will indeed be messy. I suspect that a post-Roe world will feature some overreaches and injustices. We should do as much as we can to minimize them and try to get things right.

    But we also shouldn’t let these concerns delay by even one day the time when the unborn are included within the law’s protection.

  19. April 18, 2011 1:50 pm

    Since people are being constantly called to say whether a notion is “pro-life,” I am going to question whether it is truly “pro-woman,” to say, “There there, I know your boyfriend lied to you and abandoned you, so you’re obviously not accountable for your actions, and we’re not going to punish you for them.”

    It seems quite possible that this woman is mentally ill. If that is the case, as MZ mentions, we have mechanisms in the criminal justice system for dealing with that, which is definitely how this would be dealt with if the children had been born. If those mechanisms are faulty, I don’t see why it particularly falls on the pro-life movement to address those faults.

    But I don’t think it is “pro-woman” to look at the outline of the facts of this case and immediately conclude that the woman was emotionally distressed and therefore not responsible for her actions.

    • Ronald King permalink
      April 18, 2011 2:42 pm

      John, I have worked with women for over thirty years and a woman’s suffering is much different than you can imagine. Every woman I worked with wanted someone to understand her suffering and the cause of that suffering. When a woman does not bond with her baby there is a neurobiological reason for this and the neurobiological reason has precursors that need to be investigated. If we do not approach it this way then we are doing a great injustice to women and men, in essence, to all humanity. We cannot remain ignorant of something we do not fully understand and expect to change people with more legal solutions. God’s justice demands that we put ourselves in the other person’s shoes, just as Christ put Himself in our shoes. That hasn’t worked.

      • April 18, 2011 7:16 pm


        I appreciate your compassion, but there is a lot of behavior we don’t fully understand—like why people molest children, why men rape women, and why people become serial killers—that we deal with by threats of punishment for the purpose of deterrence. There was an interesting and disturbing article in a recent issue of Newsweek about male-on-male rape (including gang rape) in the military in which it was said that heterosexual men are more likely to be the rapists and gay men the victims. (To the extent there was an explanation, it was that rape is a way of saying, “I’ll show you who’s boss around here.”)

        If abortion is murder, why should we wait around until we figure out the neurobiology of it? Again, I appreciate where you’re coming from, and the more understanding of the issue the better. But meanwhile, 1.3 million babies a year are being murdered, according to the pro-life movement.

    • Cindy permalink
      April 18, 2011 6:17 pm

      At least you are coming from an angle of truth John. In that you are willing to admit that women would indeed likely be prosecuted. See most pro lifers like to sway people away from that very fact, and try and make it seem like it’s the pro choice person that is distorting the view. Again, either way isnt going to effect my personal life, as I wouldnt have an abortion. But for many people, they would not be as supportive of the pro life movement if they thought that women would be serving sentences that were caught still finding ways to achieve their goals. When they start to contemplate that outlook, the view shifts. So pro lifers try everything they can to keep people from thinking about that viewpoint and they work hard to try and prove that it wouldnt happen. It ends up where you have women not being responsible for taking the life that is now legal to take. How could one think that is going to be the reality. We should all see how our justice system works here.

  20. April 18, 2011 3:47 pm

    And I keep saying this: no, it’s not illogical to have the civil law NOT punish people for committing grave moral evils — many grave moral evils are not punished for a variety of reasons.


    But you claim abortion is murder. Mother Teresa claims abortion is a mother murdering her own child. What kind of penal code doesn’t punish murder?

    NOTE 1: I am only addressing myself to those in the pro-life movement who claim abortion is murder, and that the moral value of a fetus is equal to the moral value of any other (post-born) human life.

    NOTE 2: From the looks of the “trigger laws” in several states, it looks like abortion is not going to be treated as murder. Abortionists will not be treated as murderers. So obviously the law will not treat women as accomplices to murder. However, I am trying to think of a grave evil that you can pay someone (like an abortionist) to commit that is illegal, where the person who commits the evil is prosecuted but the person who pays the evildoer is not. How can you justify a law where a person is prosecuted as a serious offender but not the person who pays the offender to commit the serious offense? Give me one case where you can purchase an illegal service without committing a crime yourself. Yes, it is true that in some cases the law goes after the bigger fish (drug dealer, prostitute) and pays less attention to the littler fish (drug user, john), but I can’t think of any case where the buyer of illegal services is not committing a crime.

    • Thales permalink
      April 18, 2011 9:33 pm

      However, I am trying to think of a grave evil that you can pay someone (like an abortionist) to commit that is illegal, where the person who commits the evil is prosecuted but the person who pays the evildoer is not. How can you justify a law where a person is prosecuted as a serious offender but not the person who pays the offender to commit the serious offense? Give me one case where you can purchase an illegal service without committing a crime yourself.

      Assisted-suicide a la Dr. Kevorkian.

  21. April 18, 2011 5:09 pm

    As with any crime, if an accused has mental problems, it is up to her attorneys to raise it as a defense. The prosecution’s job is to determine whether a law has been broken and to bring charges.

    I don’t see anything shocking about it. Nor was I shocked when they brought charges against an allegedly crazy mother who had murdered her post-birth children.

    I don’t oppose prosecution because the purpose of prosecution is to determine whether or not the accused is guilty. If she’s guilty then I don’t want her getting away with it. If she’s not, I’m sure she will be acquitted.

  22. April 18, 2011 6:09 pm

    William Saleton dealt with this topic in Slate, where pro-life readers gave their reasons why women should not be prosecuted if abortion is murder. In the article, each reason is followed by a paragraph or more of explanation and/or Saletan’s comments, but I am just going to reproduce the reasons themselves:

    1. It’s just political pragmatism.
    2. We can’t prosecute women because courts won’t let us ban abortion.
    3. Even if we can ban abortion, courts won’t let us prosecute women.
    4. It’s rational to target the sellers.
    5. If women can be prosecuted, they won’t testify against abortionists.
    6. Women are innocent because doctors deceive them.
    7. Women who get abortions are desperate.
    8. Women who get abortions are coerced and remorseful.
    9. The doctor will kill again, but the woman won’t.
    10. For women, abortion is punishment enough.
    11. Women who get abortions are in denial.
    12. Abortion’s legality prevents women from realizing that abortion is killing.
    13. The abortion industry prevents women from realizing that abortion is killing.
    14. Abortion isn’t as clearly wrong as murder.

    Saletan’s own conclusion is as follows:

    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.

    • Cindy permalink
      April 18, 2011 8:37 pm

      I would have to agree with his conclusions. I sincerely would. I can only agree with numbers 11, 12, and 13. The rest I do not agree with at all.

    • Thales permalink
      April 18, 2011 10:37 pm


      I think the problem with yours and Saletan’s position is that there is equivocation on the word “murder”. It seems that your argument goes like this:
      1. murder is something that our penal code punishes by imprisonment
      2. pro-lifers claim that abortion is murder
      3. therefore, pro-lifers must conclude that those who commit abortion must be imprisoned; and if pro-lifers don’t think people who commit abortion should be imprisoned, then they don’t really think abortion is murder.

      The flaw with that argument is that “murder” in lines 1 and 2 is used equivocally. In line 1, “murder” means “a legal prohibition which currently carries a punishment of imprisonment” while in line 2, “murder” means “an intentional killing of a human being”. I (and many pro-lifers like me), think that abortion is killing of a human being, but we don’t think that this particular type of killing should be punished by imprisonment.

      Also, it’s strange to determine the morality of abortion by looking at how a society is willing to punish it: that’s putting the cart before the horse. The morality of abortion should be determined by looking at the nature of the act. After we’ve determined the morality of the act, then we can look at what legal status is appropriate for our society. (Consider the fact that in different societies, the exact same immoral act can have different legal statuses — consider the differing punishments associated with murder, adultery, or sodomy over history. From this, it is clear that it is backwards to try to determine the morality of an act based on the punishment determined by society. It doesn’t make sense to say that murder or adultery was more immoral back in the day of hangings than it is today.) It’s important to note that the line 1 “murder” is something which has different definitions and different punishments depending on the society and depending on the particular circumstances of the perpetrator.

      To illustrate the fallacy in yours and Saletan’s argument, consider the suicide example, which I’ve brought up before. Let’s assume someone who is attempting to commit suicide with full will and full knowledge of his actions (ie, there is no mental sickness whatsoever). Since this suicide is the intentional killing of a human being, I think that it is equivalent to murder, morally speaking. Following your argument:

      1. attempted murder is something that our penal code punishes by imprisonment
      2. I think that attempted suicide is the moral equivalent to attempted murder
      3. therefore, I must conclude that those who attempt suicide must be imprisoned, or else I don’t really think that attempted suicide is the moral equivalent to attempted murder — but line 3 is a silly result. I get to that silly result by equivocating on “attempted murder”.

      In sum, when I or Mother Teresa or a pro-lifer says “abortion is murder”, they are saying “abortion is the intentional killing of a human being”. And it’s not illogical to think that some “intentional killings of a human being” should not be prosecuted and punished under the first degree murder legal statute : suicide and the example of the mother driving the van into the pond/poisoning the infant are situations where I think there was an intentional killing of a human being, but which I don’t think should be punished with imprisonment.

      • April 19, 2011 9:17 am

        It’s for that reason that I prefer to avoid the loaded term “murder” when referring to abortion opt for the more descriptive term “killing.”

        It is certainly possibly for me to imagine an abortion that would be the moral equivalent of what we consider first-degree murder. But I am not convinced that is the case for the majority of abortions.

        That is not to say that the mother’s moral culpability is zero, but I don’t think it is usually in the same rough vicinity as a first-degree murderer.

      • April 19, 2011 10:05 am


        I think John McG gives a reasonable answer to this. For those who think abortion is “murder,” but don’t think it is the same kind of murder as the kind that is punishable by law, don’t use the word murder.

      • Thales permalink
        April 19, 2011 3:46 pm


        Agreed, John has a reasonable answer. (Kudos, John!) But since I like Mother Teresa, I’m not going to fault her for using “murder” in the non-legal, colloquial sense. For myself, I think I’ll be avoiding “murder” and stick with “intentional killing of a human being”, because using “murder” just muddies the waters of the debate.

    • Ronald King permalink
      April 19, 2011 8:12 am

      I am curious about what percentage of women who get abortions really believe that they are killing a human being? Are there any statistics?

      • April 19, 2011 9:54 am


        First of all, the pro-life position I am criticizing claims that everybody knows that abortion is killing a human being. They claim that people who are pro-choice know they are supporting murder but have ulterior motives for claiming not to. They believe that the pro-life position is so obviously right that no one who claims to disagree with it could possibly be telling the truth.

        Second, wouldn’t the pro-life argument be: What difference does it make if a woman believes having an abortion will kill a human being? It kills a human being whether she believes it does or not. The reason we have laws that send people to prison for certain actions is to deter people from committing those actions. Whether offenders believe they are doing something wrong or not is largely irrelevant.

        No matter what a woman personally believes, it would be very unlikely in this day and age to be ignorant of the fact that some people claim an abortion kills a human being. If the woman is a Catholic, it is extremely unlikely that she does not know her Church teaches that abortion is the killing of a human being. And of course a rather significant number of women who procure abortions are Catholic.

  23. Bruce in Kansas permalink
    April 19, 2011 10:06 am

    Fascinating topic and comments.

    It seems that fears and uncertainty about the due process of prosecuting women or doctors can take priority over the certainty of violent killing of a vulnerable human being. Evidently more than just the law or policy needs to change.

    If a society that does not recognize the dignity of all human life, many people will find it easy to think of an unborn human being as something else, an other, a thing. So it seems reasonable for a pregnant woman in crisis to remove the something else, the other, the thing, which is a threatening her current situation. It seems unreasonable to punish her. It seems fair for a doctor to make his livelihood performing the task of removing the something else, the other, the thing. It seems unfair to prosecute him.

    But when a society DOES recognize the dignity of all human life, it is not as easy to think that way. The woman in crisis needs help and support. She needs to see the human life in her womb as a child, not something else. The doctor needs to treat two patients, to see the unborn human life not just an other, but as another patient.

    Cases like the one above will be rare, and seen with horror, as much horror as cases of human slavery today.

    As long as the society is comfortabe denying the dignity of nascent human life, the people will be uncomfortable with these prosecution scenarios.

  24. Ronald King permalink
    April 19, 2011 10:08 am

    I have a question to those who support the right to an abortion. Forgive me if this has already been discussed. Would you hire a hit man to kill someone who is stalking you or in some way making your life miserable? If the answer is no then the next question is do you consider what is developing inside a pregnant woman human in nature?

    I have another question from the Passion read on Sunday. What are the implications of Christ saying “It would be better for that man if he had never been born.”?

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