Criminalizing Post-Abortive Women Doesn’t Work – Now

A guest post by my daughter, Grace, contra abortion abolitionists.

 

Abortion abolitionists claim that because abortion is murder, the law ought to reflect this by criminalizing post-abortive mothers, and therefore establishing justice for the unborn. Abolitionists are correct in their moral ideology. Elective abortion is murder, not because a law calls it murder, but because the procedure, whether performed medically by pill or surgically, intentionally destroys a human life which is made in the image of God. This should be obvious to any Bible believing Christian. Any society which holds founding principles derived from Christianity should recognize this and implement laws which reflect the murderous nature of abortion.

Abolitionists are wrong to ignore the mechanics of politics and the legislative process. The insistence that abolitionist bills are the only morally acceptable type of bill by which justice can be established against abortion creates a black and white moral framework rarely fits into the mucky grey of politics.

First, the briefest of practical political application: It's not practically obvious that a pregnant mother can be criminalized, depending on the culture of the state in which an abolitionist bill would be proposed. Within supermajority or very strong Republican states where the culture already accepts abortion as murder and post-abortive mothers as murderers, abolition bills would help solidify the Christian mores which that state’s constituency and culture desires. However, federally, and in most states, a legislator (who is elected by a public which does not view post-abortive mothers as infanticidal criminals) who carries an abolitionist bill in the current culture puts a shotgun to their own knee. Depending on how bad the PR fallout is, their constituents will fire them next election and replace them with a legislator more moderate on abortion, causing the prolife or abolitionist legislator to lose their job without effecting change, and causing the prolife or abolitionist lobby to lose an ally by which they could have proposed further bills. In many states, it may very well be bad stewardship of our prolife allies and representatives to strong arm them into carrying an abolitionist bill to committee if the odds of the bill dying are high and the odds of a different prolife bill passing are high. Some wars are won through a blitz. Some wars are won through an island-hopping attrition campaign. Wisdom is knowing what kind of war you are in. The battle in Arkansas is not the same as the battle in New York.

I think, however, that the entire abolition vs. prolife debate misses the point and sounds too much like asking, “Where was Gondor when the Westfold fell?” The debate strikes me as a marked failure of Christians (abolitionist or prolife or otherwise) to understand the pro-abortion strategy. The battle is not being fought at the level of the state laws, it is being fought at the level of the culture and the level of state constitutions. As state after state caves to a popular pro-abortion constitutional amendment, we ought to recognize that without cultural change, even if our legislators passed abolitionist laws in every state, we would still lose this war via popular votes on state constitutions. A primary example is Ohio, a supermajority Republican state with a Republican governor, which still voted popularly for a constitutional right to unlimited abortion up to and including the moment of birth. No abolitionist law could have saved them, and even if one had passed, it would now be considered an unconstitutional law in Ohio and would be struck from the books in short order, likely with great pomp and circumstance by the pro-abortion lobby.

One of the main arguments of the abolitionists is to say that the law is a tutor, and with an abolitionist law, many women would be deterred from procuring abortions. To say that the law is a tutor is true, but it’s an oversimplification.

The culture for the last 100+ years has learned that the emotional and intellectual self is the highest moral authority, and if that selfish moral authority requires the death of unborn children, so be it (see Carl Trueman’s Rise and Triumph of the Modern Self ). An abolitionist law passed and enforced tomorrow will not undo the last 100+ years of cultural self-worship. It will only spit in the eye of a much stronger cultural power, a power which has no problems exerting itself on millions of unborn children. Expect disastrous reprisal. Many abolitionists criticize Dobbs v. Jackson Women’s Health Organization as a legal prolife victory resulting in sweeping cultural pro-abortion victories worsening the situation in many states. How would an abolitionist law be any different? While we shouldn’t modify our language or message in order to make the leading class of the pro-abortion movement like us (they never will), we would be wise to take some cues from their winning strategy. They didn’t need the law to teach culture, they simply captured the institutions until their cultural power increased to critical mass. By the time Roe v. Wade came before the Supreme Court, it was already too late, the pro-abortion wing had won.

I’ll cite the Comstock Act as a law originally written in 1873, in a more Christian and principled America. The Comstock Act is currently on the books, currently in effect, which legally prevents people from mailing obscene material, including abortion pills. Abolitionists might think that this law is currently acting as a tutor, teaching the culture about the moral wrong of shipping abortion pills from state to state. Unfortunately, the Comstock Act is not enforced because our judicial system and society at large no longer holds the moral principles of 1873. Federally, we lack the moral framework even to desire to enforce the Comstock Act.

Equal protection and justice for the unborn is a good, moral, and righteous idea, if the law is a good, moral, and righteous law, and if the judicial system applies the law in a good, moral, and righteous way by good, moral, and righteous people. Despite the blessing of our judicial system, we should recognize its brokenness, the current brokenness of our culture, and the depravity of any human being, whether they be judge, juror, lawyer, or police officer. If tomorrow you passed an abolitionist law, and the day after you brought a woman to trial for getting an elective abortion with full knowledge of the personhood of the baby and the process of an abortion, not a single person on that jury would find her guilty of first-degree homicide, no matter how strong the evidence. Judeo-Christian morality lacks the cultural strength it held in 1873, and unfortunately, this means that many laws which work within a Christian moral framework, such as the Comstock Act, are culturally rejected, and therefore left unenforced.

That’s a sad state of affairs, but it’s the current state of affairs, and a legal change will have little effect on the culture. The only way the culture will truly change is through the spread of the Gospel. This is where our efforts should be focused. God will grant the cultural change as He sees fit, but let us not be caught slacking in our commission.