Abortion opponents and supporters spar over prosecuting women

The second Wednesday in January, Bradley Pierce received a text from a friend linking to an article with the headline, “Alabama Women Can Be Prosecuted For Taking Abortion Pills, AG Says.”

The piece cited an article from AL.com that quotes Alabama Attorney General Steve Marshall. In a statement, Marshall said a state pro-life law protecting babies from abortion starting at conception exempts women who undergo surgical abortions from liability. But then he added, “It does not provide an across-the-board exemption from all criminal laws, including the chemical-endangerment law—which the Alabama Supreme Court has affirmed and reaffirmed protects unborn children.”

An earlier article from 1819 News ran the same quote, fueling speculation that the state attorney general was prepared to prosecute women for drug-induced abortions just as the Biden administration made moves to expand the drug’s availability.

But Pierce, who is the president of the Foundation to Abolish Abortion, wasn’t convinced.

“I immediately knew that’s not the case,” he said. “I was kind of waiting for the shoe to drop and for him to issue a clarification.”

The next day, Marshall clarified to other news outlets that women cannot be prosecuted for taking abortion pills, citing a state law that exempts the mother from prosecution in abortion cases. He said pregnant mothers can only be prosecuted under the chemical endangerment law if they use other illegal drugs that harm the unborn child.

In an email to WORLD, Marshall’s office simply said, “The AL.com headline is inaccurate” and would provide no other comment. Pierce’s friend texted him again, basically saying “never mind.”

But the headlines still sparked discussion among pro-life and pro-abortion groups about the role penalties for mothers of aborted babies will play moving forward in abortion legislation, especially as at-home chemical abortions continue to become the norm. Mainstream pro-life groups denounce the prosecution of women, while the self-described abolitionist movement calls such laws necessary for ending abortion. Even pro-abortion groups say penalties for mothers are a logical outcome of the anti-abortion position.

Pierce knows from experience that the mainstream pro-life movement is not interested in penalizing mothers. He lobbies for laws to classify abortion as a homicide. Under this approach, all parties in an abortion—including the mother of the aborted child—would face penalties.

Last spring, a Louisiana legislative committee voted to advance an abolitionist bill that Pierce drafted. Since 2016, lawmakers in 13 states have filed abolitionist bills, but Louisiana’s was the first to make it out of the committee stage.

The day legislators planned to debate the bill, a coalition of more than 70 pro-life leaders released an open letter to state lawmakers stating “unequivocally that we do not support any measure seeking to criminalize or punish women.” They explained that “women are victims of abortion and require our compassion and support,” adding later that “turning women who have abortions into criminals is not the way.”

The bill’s sponsor pulled it from debate. The legislation died.

After the Alabama attorney general’s statement, mainstream pro-life groups doubled down on that position. “The pro-life movement is focused on holding the abortion industry accountable for taking the lives of millions of babies, not prosecuting mothers,” Susan B. Anthony Pro-Life America President Marjorie Dannenfelser said in a Jan. 12 statement.

When WORLD reached out to state National Right to Life affiliate Alabama Right to Life, the organization provided a link to the spring 2022 open letter condemning penalties for mothers, signed by board director Cheryl Lewis.

Despite the clarification from pro-life groups, abortion advocates cried foul. Erin Matson, executive director of the pro-abortion group Reproaction, wrote a letter to the editor that ran in The Washington Post on Jan. 16. “The logical consequence of abortion bans is sending people to jail,” she said, directing readers to YouTube videos of pro-life lawmakers and activists vocalizing support for penalizing women who abort their unborn babies.

Pro-abortion groups expect prosecution of women as drug-induced abortion becomes more available. According to the latest data from the pro-abortion Guttmacher Institute, chemical abortions already accounted for 53 percent of all abortions in 2020. Since then, the Biden administration has relaxed restrictions on the abortion pill, including removing the requirement that providers give women the drugs in person, allowing mail delivery of the drug, and certifying pharmacies to fill abortion pill prescriptions.

Within days of Marshall’s statements, MSNBC aired a live interview with operations director Robin Marty at the former abortion facility West Alabama Women’s Center. She said increasing abortion pill availability has enabled people to “be able to manage their own abortion without any sort of medical intervention, any sort of assistance … without letting anybody know. [This] is terrifying for lawmakers because they’ve gone through and said, OK, we are never going to punish the person who was getting the abortion. But once you remove everybody else, there’s no one to punish.”

The Biden administration also sees the loophole in states’ existing protections for unborn babies. The Department of Justice recently reinterpreted federal law to allow the U.S. Postal Service to deliver abortion pills even in states that protect all unborn babies from abortion. In a memo, the department reasoned that the Comstock Act, which makes mailing abortive drugs illegal, only prohibits it if the sender knows the recipient will use them for “unlawful” abortions.

“Some states that regulate the conduct of certain actors involved in abortions do not make it unlawful for the woman herself to abort her pregnancy,” reads the memo. In these scenarios, federal law “might not prohibit the mailing of [abortion pills] to a woman in a state with restrictions on abortion, even if the sender does so with the intent that the woman uses the drugs to produce an abortion.”

But in Pierce’s mind, the department would have made excuses for mailing abortion pills regardless of state laws.

“The free market is ahead of the government,” Pierce said. He pointed to pro-abortion websites that help women circumvent state laws, often linking to online pharmacies unregulated by the FDA. They also advise women in states that prohibit mail-order abortions to set up mail forwarding through an address in a pro-abortion state. That way they can receive the pills without the sender knowing they were violating another state’s laws. After the overturning of Roe v. Wade in June, mentions of this mail-forwarding strategy appeared in The New York Times, The Atlantic, and other mainstream publications.

“In some ways, this is all kind of moot,” Pierce said. Now that every home can be an abortion facility, he said, unless the law treats abortion as murder, “we’re dealing with method instead of dealing with the actual conduct of what actually is happening—and that is intentionally causing the death of a human being.” He called it more loving to teach women through the law that it’s wrong to kill unborn children. “Our laws are telling these mothers that it’s okay,” he said. “That’s not loving. That’s not loving at all.”

But mainstream pro-life groups say passing laws that would allow women to face prosecution for their own abortions is not the solution to pro-abortion groups’ legal workarounds.

“We do see women as the second victim,” said Laura Echevarria, communications director for National Right to Life. She expressed concern that introducing penalties for women would encourage women to conceal their abortions even if they faced life-threatening complications. “The danger is very real to the woman. And so we do want them to feel comfortable coming forward. If there is a problem, we do want them to go to the emergency room. If someone starts throwing out the idea of prosecuting women, that defeats that purpose and puts her even in greater danger.”

Instead, national pro-life organizations are encouraging states to improve the enforcement of existing laws while also proposing new legislation to target the abortion pill industry, not mothers. The pro-life group Students for Life Action has helped craft bills banning the manufacturing, prescribing, or selling of abortifacient drugs or prohibiting mail-order distribution of the pills. At least one piece of legislation would penalize manufacturers of the drug who don’t instruct women on how to properly dispose of their aborted babies in medical waste bags.

These bills exempt mothers of unborn children from criminal liability and instead focus on cutting off abortion supply. Students for Life of America president Kristan Hawkins said some pregnant mothers will still find ways to get abortive drugs. But pro-life resources like pregnancy centers, maternity homes, and education about what abortion does can help decrease that demand.

That strong opposition from mainstream pro-life groups means that abolitionist bills are unlikely to gain majority support in pro-life states. But the debate isn’t likely to end soon. As lawmakers enter another legislative session, Pierce said his Foundation to Abolish Abortion has seen increased interest in abolitionist bills. “I think people are seeing that it’s the consistent way to deal with this and really it’s the only way to actually abolish abortion,” he said.