Should mothers be excepted from murder prosecution for abortions when abortions are illegal? Since we started the ballot initiative effort to establish equal protection under the law for the preborn and treat their deaths by abortion as murder, we have had some people oppose the effort based on the idea that women, mothers particularly, should not be subject to murder prosecution in an abortion. In fact, many pro-life organization’s positions have been that only abortionists should be punished and that women are somehow victims of abortion.
We have rejected the idea in argumentation elsewhere that mothers are victims of abortion, but here we would like to address whether mothers should be prosecuted for murder for obtaining abortions. To frame the argument, we will use a press release from January 24, 2017, in which Right to Life of Idaho opposed our ballot initiative and declared:
Right to Life of Idaho does not support any legislative action that would subject women to criminal penalties for an abortion. Subjecting women to criminal penalties for an abortion is inconsistent with the historic pro-life position. We have never supported legislation containing criminal penalties for women.
The petition for a ballot initiative that we are circulating is the only morally consistent position against abortion. If abortion is wrong, then why is it wrong? We propose that it is wrong because it is the murder of fellow human beings that are made in the same image of God in which the born are made. To establish equal protection under the law, the preborn’s unlawful destruction should be treated the same as the unlawful taking of a born person’s life – criminal murder. Even the United States Supreme Court, which we oppose for their rationale in the original Roe v. Wade decision, understood the state of Texas’ moral inconsistency on abortion regulation. Justice Harry Blackmun, writing the majority opinion, wrote in footnote 54:
“54 When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n. 49, supra, that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?
Here are the original Texas statutes that were being challenged in the Roe v. Wade case and to which Justice Blackmun refers:
Article 1191. Abortion
If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By “abortion” is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.
Art. 1192. Furnishing the means
Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
Art. 1193. Attempt at abortion
If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.
Art. 1194. Murder in producing abortion
If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.
Art. 1195. Destroying unborn child
Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.
Art. 1196. By medical advice
Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
So, in the Roe v. Wade decision itself, Justice Blackmun wrote that Texas undermined its own argument that the preborn were humans worthy of 14th amendment protection (no deprivation of life without due process of law) when, in its own statutes that it was defending, Texas did not prosecute women who killed their children and when they did not treat the murder of the preborn equally with the murder of the born as to the penalties. As well, the court criticized the states for even one common exception – abortion when the life of the mother is threatened – asking about the preborn’s due process even in that case. The Supreme Court repudiated the states’ hypocrisy between what they claimed to believe and what they had already enacted in statute. Therefore, the states had forfeited any moral high ground, and the court took advantage of the state’s weakness and rendered a judicial opinion that abortion was a constitutionally protected right.
Unfortunately, in all of the decades since Roe v. Wade, the pro-life organizations like Right to Life of Idaho have never understood that they undermine their position by treating abortion as something less than what it is – murder. They have failed to understand that when they claim abortion is wrong but are not willing to treat it as any other murder as to which individuals are responsible for the crime and as to the severity of the penalties, then they have created an arbitrary and capricious standard with no solid moral foundation and no solid constitutional foundation. Even those who support abortion on demand do not respect this moral and logical inconsistency.
The actual historical pro-life position, in contradiction to Right to Life of Idaho’s claim, is found in one of the oldest and most well supported documents on the planet, the Bible. In Genesis 9:6, we find this:
“Whoso sheddeth man’s blood, by man shall his blood be shed: for in the image of God made he man.”
Life is valuable because we all have a human spirit from the moment of biological conception, and that spirit is made in the image of God. The 6th commandment is that “thou shalt not murder”. It is the most basic function of our civil government to protect innocent life from those who would unlawfully take innocent life. Without the protection of the unalienable right to life, there is little value to protecting liberty and pursuit of happiness.
The petition being circulated by Abolish Abortion Idaho is the only morally and constitutionally consistent legislative proposal to come along in the entirety of the 44 years since Roe v. Wade. Our legislative language permits no exceptions for which innocent human life may be intentionally destroyed.
Circulate the Idaho Ballot Initiative to Criminalize Abortion as Murder