Proposals to Prosecute Women for Abortion: Legally Flawed, Counterproductive, and Probably Unconstitutional
Introduction
Since the pro-life movement first undertook the effort, many decades ago now, to counter the efforts of pro-abortionists to legalize abortion, those on the pro-abortion side have used scare tactics and false accusations in their efforts to consolidate and extend their gains. Throughout the years that Roe was the law of the land, they developed a double-pronged argument: First, they told the public that if abortion were banned women who procured abortions would be charged with abortion, or perhaps even murder. When pro-lifers replied that this had not been the practice under the old state laws prior to Roe and that there was no such expectation of doing so if Roe were overturned, our opponents claimed this was proof that we (and the 19th-century reformers who campaigned for the laws outlawing abortion) did not really believe that the unborn were human beings on a par with those born; otherwise, they argued, we would seek parity in the treatment and sentencing of everyone involved in killing the unborn, including not only the abortionist but the woman seeking his services.
However, as this article explains, there is more to the law than the pro-abortionists’ rather simple equation suggests. In particular, treating both the abortionist and the woman seeking an abortion as equally guilty in the offense of abortion not only muddies the very real differences between them, but has unintended consequences that interfere with the true aim of anti-abortion laws, which is protection of the unborn.
Over the past few years, the Foundation to Abolish Abortion and other “abolitionists” organizations have supported legislative proposals that would treat abortion as a form of homicide (more specifically, murder) and subject women who have abortions to the same penalties that would apply to the unjustified killing of a born person including, where otherwise allowed by state law, the death penalty.1 These proposals appear to have been based on what is, in my opinion and the opinion of others who are more qualified to comment on it, a misreading of the only biblical text on abortion—Exodus 21:22 (NEB). Abolitionists are understandably frustrated with the incidence of pregnant women obtaining abortifacients through the mail to end their pregnancies, particularly in states where abortion is illegal. To date, none of their proposals has passed. But their introduction into state legislatures, and the divisions they have caused in the pro-life movement, call for further reflection. The practical difficulties in investigating and prosecuting women for having illegal abortions—especially those caused by the ingestion of abortifacients like mifepristone and misoprostol—have been explored in great detail by Monica Snyder and others.2 And the political consequences of pursuing a legal strategy of prosecuting women have also been widely discussed.3 It is not my purpose in this article to address either the practicalities of enforcement or the politics of prosecuting women for abortion. Rather, I would like to bring some historical perspective on the subject and discuss why these proposals are legally flawed, counterproductive, and probably unconstitutional.
Prosecution of Women under Pre-Roe Abortion Statutes
Unlike contemporary abortion statutes, which expressly exempt pregnant women from prosecution for undergoing an abortion,4 pre-Roe abortion statutes, with the exception of Vermont’s statute,5 did not, by their own terms, state whether women were subject to prosecution. As a result, state courts had to decide whether women could be prosecuted for abortion. This issue most often came up in the context of a prosecution of an abortionist.
The defendant abortionist would argue that the woman upon whom he performed an abortion was an accomplice in the crime with which he had been charged. As an accomplice, so the argument went, the woman’s testimony (at least in some states) would have to be independently corroborated by other evidence, and (in all states) the defendant would be entitled to a cautionary jury instruction on the credibility of an accomplice’s testimony. In thirty-one of the thirty-three states where this issue was decided, the courts held that the woman was not an accomplice in her own abortion.6 As such, apart from any other statute that might require corroboration in certain cases, her testimony did not need to be corroborated by independent evidence, and the defendant was not entitled to a cautionary jury instruction. Although state courts in Alabama and Ohio held otherwise,7 there is no reported case of any woman being prosecuted for abortion in either state.8
State courts provided several rationales for rejecting the argument that women were accomplices in their own abortions. First, several state courts held that their abortion statutes applied only to transitive action by one person acting upon another, in other words, A doing something to B, not A doing something to herself. Accordingly, neither self-abortion nor consenting to an abortion performed by another fell within the scope of the statute.9
Second, at one time or another, nineteen states enacted statutes that expressly criminalized the pregnant woman’s conduct in soliciting an abortion or in consenting to an abortion performed on her by another. In several of these states, courts reasoned that the woman was legally culpable for her conduct only under those specialized statutes, not under the general abortion statute with which the abortionist had been charged.10 These specialized statutes may have been enacted not for the purpose of prosecuting the woman, but to preclude an abortionist’s argument that she was an accomplice in the same crime with which he had been charged. This supposition is supported by the fact that there is only one recorded case in which a woman was charged under one of these solicitation statutes, and that charge was dis-missed by the trial court.11
Third, women were regarded as victims (along with their unborn child) of an illegal abortion. There are more than 150 reported cases where the woman upon whom an illegal abortion was performed was described by a reviewing court as a “victim” of the offense of abortion. In sixty-nine of those cases, the woman died as a result of the abortion; in thirty-eight of the other eighty-two cases, where she survived, she had to be hospitalized.12
Finally, a number of state courts, while recognizing the pregnant woman’s moral culpability in undergoing an abortion, stated (or clearly implied) that her culpability was less than that of the abortionist and, therefore, it was reasonable to subject him, but not her, to prosecution.13 The Maryland Court of Appeals explained that [w]hile it may seem illogical to hold that a pregnant woman who solicits the commission of an abortion and willingly submits to its commission upon her own person is not an accomplice in the commission of the crime, yet many courts in the United States have adopted this rule, asserting that public policy demands its application and that its exception from the general rule is justified by the wisdom of experience.14
The Pre-Roe Rationales for Not Prosecuting Women Today
Do any of these rationales still apply? Contemporary abortion statutes have been drafted expressly to exempt women from criminal liability. As a result, the first and second rationales offered by pre-Roe courts—whether the statute applied only to transitive action or whether there was a separate statute criminalizing the woman’s conduct—need not be discussed further.
As for the third rationale, while the risks to women from illegal surgical abortions are far less now than they were before Roe was decided, most illegal abortions are now medically induced by various drugs, including mifepristone. The widespread use of mifepristone, especially mifepristone obtained through the mails, carries a number of risks for the woman. Mifepristone is contraindicated in cases of ectopic pregnancy or after ten weeks’ gestation, yet the woman taking the drug may not know that she is experiencing an ectopic pregnancy or how far along in pregnancy she is. Also, with respect to pregnant women with Rh-negative blood types, the failure to diagnose her blood type and give her a “RhoGAM” shot late in pregnancy may pose severe risks to any child she conceives in a future pregnancy.15 Obviously, these risks do not materialize in most medically induced abortions, but the risks remain. And there is a much higher reported incidence of complications with medically induced abortions, even ones under the supervision of a physician, than with surgical abortions.16
The fourth rationale—that the pregnant woman who undergoes an abortion procedure or who takes an abortifacient is less culpable than the person who performs the abortion on her or who provides her with an abortifacient—is still valid, for three reasons. First, the pregnant woman herself may be acting under stress or pressure—from a husband, a boyfriend, her parents, or others—to end her pregnancy, while the third party who assists her in ending her pregnancy is not subject to such pressures. This is not to suggest that women are not morally responsible agents or that they are coerced (in legal terms) into obtaining an abortion. Rather, as between the woman who seeks to end her pregnancy and a third party who makes that possible, the third party is more culpable.
Second, without the assistance of a third party, the pregnant woman would not be able to terminate her pregnancy safely. It is the third party who makes it possible for a woman to end her pregnancy by abortion, and it is the third party who, we can reasonably assume, is assisting other women in doing so as well. Finally, the third party who performs or facilitates abortion is typically acting out of ideological or pecuniary interests or both, neither of which applies to the pregnant woman herself.
As the more culpable party, the person who makes it possible for a pregnant woman to terminate her pregnancy through an illegal abortion should be the focus of law enforcement. In the vast majority of cases, it would not be possible to prosecute the third party without the cooperation and testimony of the woman herself. If, however, the woman could be charged with murder (or any other offense related to her abortion), the state could not force her to testify against the third party, because her testimony would tend to criminate her in the same offense.
She would have a constitutional right against self-incrimination. Her testimony could be obtained only if she were given immunity from prosecution. But giving the woman immunity would create the problems identified earlier in this article—she would be regarded as an accomplice (or perhaps even a principal) in her own abortion. As a result, as explained above, at least in some states, her testimony would have to be independently corroborated, and in all states the defendant against whom she would testify would be entitled to a cautionary jury instruction on the credibility of an accomplice’s testimony. A witness who has been given immunity or who has been promised immunity in exchange for her testimony is less credible than one who has not been given or promised immunity.17 If the objective is to prosecute and convict the more culpable third party who enables a pregnant woman to have an abortion, why make the third party’s prosecution more difficult by treating the woman herself as a criminal?18
Criminal Defenses to Abortion Treated as Murder Under Abolitionists’ Proposals
Under the proposals we’ve been discussing, as far as the woman’s criminal liability is concerned none of the defenses to criminal conduct that may apply in other circumstances would apply to the woman herself if abortion were treated as homicide. In the case of homicide, a person has the right to use deadly force to prevent an imminent threat of death or serious bodily injury.19 But self-defense applies only to using such force against an aggressor.20 The unborn child, however, is not an aggressor and cannot be said to be “acting” in any fashion to threaten the mother’s life or physical health.21
The defense of necessity would not apply either. As Professor LaFave has explained, the defense of necessity “is often expressed in terms of choice of evils. When the pressure of circumstances presents one with a choice of evils, the law prefers that he avoid the greater evil by bringing about the lesser evil. Thus the evil involved in terms of the criminal law . . . may be less than that which would result from literal compliance with the law ”22 In the Model Penal Code’s formulation, “Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable provided that
. . . the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.”23 This standard would not justify an abortion to save the life of the mother. This is because “the harm or evil” sought to be avoided by the abortion—the death of one person (the mother)—is not greater than “the harm or evil” sought to be prevented by the law defining the offense charged—the murder of another person, the unborn child. They are equivalent evils.
Phrased somewhat differently, if the life of an unborn child is equal in value to the life of a born person, intentionally causing the death of the unborn child could never be regarded as the lesser of two evils (the other evil being the death of the pregnant woman).
Finally, in the absence of a statute providing otherwise, the defense of duress (or coercion), where one is compelled by another’s threats into com-mitting a crime, never excuses the use of deadly force. Summarizing the applicable case law, Professor LaFave states that “duress cannot excuse murder—or, as it is better expressed . . . , duress cannot excuse the intentional killing of (or attempt to kill) an innocent third person.”24 Nevertheless, many of the legislative proposals to criminalize the woman’s conduct carve out an extremely limited duress (or coercion) defense for a pregnant woman, but the defense applies only when she is threatened with the imminent infliction of death or serious physical injury if she does not terminate her pregnancy. While such scenarios are not unheard of, they are extremely rare and certainly not the principal problem posed by the use of abortifacients to end pregnancies.
In sum, under the legislative proposals that have been introduced in many states to criminalize the woman’s conduct in having an abortion—treating her conduct as murder—the woman would have no defense, even if continuation of her pregnancy would likely result in her death.25 A law that would not allow abortion under such circumstances would almost certainly be unconstitutional, as (then) Justice Rehnquist said in his dissent in Roe v. Wade,26 and as Justice Kavanaugh implied in his concurrence in Dobbs v. Jackson Women’s Health Organization.27
Conclusion
The problem of the widespread availability of abortifacients that enable women to end their pregnancies illegally is a serious one that needs to be addressed in thoughtful and creative ways (for one, by enforcing the Comstock Act). But proposing to criminalize a woman’s conduct in taking an abortifacient, in particular treating her conduct as murder, is not a serious solution to the problem.
NOTES
1. Most, if not all, of these proposals are accessible on the Foundation to Abolish Abortion’s website, https://faa.life/states
2. See, e.g., Monica Snyder, “6 Reasons Equal Protection Laws Can’t Be Enforced Justly, Secular Pro-Life, April 29, 2026, https://secularprolife.org/2026/04/6-reasons-equal-protection-enforcement/ John Gerardi, “Prosecuting Women for Abortions Would Be an Evidentiary Nightmare,” National Review, March 3, 2026, https://www.nationalreview.com/corner/prosecuting-women-for-abortions-would-be-an-evidentiary-nightmare/
3. See, e.g., Scott Klusendorg, “Why Equal Protection Bills Harm Pro Life Efforts,” Current Affairs (May 10, 2026) https://www.thegospelcoalition.org/article/equal-protection-harms-pro-life/
4. See the author’s article, “Prosecuting Women for Abortion: A Reality Check,” 37 Regent U. L. rev. 341, 354-55 & nn. 83–86 (2024–2025). An older Nevada statute, which prohibits abortion after twenty-four weeks, see Nev. Rev. Stat. § 200.220 (2023), criminalizes the woman’s conduct, but, to date, no woman has been convicted under the statute.
5. See VT. STAT. tit. 13, § 101 (1972).
6. In addition to the cases cited in Jonathan M. Purver, Annotation, Woman upon Whom Abortion Is Committed or Attempted as Accomplice for Purposes of Rule Requiring Corroboration of Accomplice Testimony, 34 A.L.R.3d 858 (1970), see Heath v. State, 459 S.W.2d 420, 422 (Ark.1970); People v. Gallardo, 257 P.2d 29, 33 (Cal. 1953); People v. Young, 75 N.E.2d 349, 352 (Ill1947); Joy v. Brown,
252 P.2d 889, 892 (Kan. 1953): Simmons v. Victory Industrial Life Insurance Co. of Louisiana, 139 So. 68, 70 (La. Ct. App. 1932); State v. McCurtain, 172 P. 481,482 (Utah. 1918); Miller v. Bennett, 56 S.E.2d 217, 221 (Va. 1949). On occasion, a woman upon whom an illegal abortion had been performed was characterized as a co-conspirator, See. e. g., Solander v. People, 2 Colo. 48, 62-63 (1873); State v. Crofford, 110 N.W. 921, 922 (Iowa 1907); State v. Hunter, 154 N.W. 1083, 1085 (Minn.1915); Fields v. State, 185 N.W. 400 (Neb. 1921); Kraut v. State, 280 N.W. 327, 332–33 (Wis. 1938). This characterization was made not for the purpose of prosecuting her (indeed, in most of these cases the woman had died as the result of undergoing an illegal abortion), but to allow statements she made or conduct she engaged in to be admitted into evidence against an abortionist.
7. The Alabama and Ohio cases may be found in the American Law Report cited in the previous note.
8. In fact, there are only five reported pre-Roe cases where a woman was charged with abortion (or homicide based upon abortion). In four of those cases, the woman was not convicted and in the fifth case, her conviction was reversed on appeal. The five cases are State v. Prude, 76 Miss. 543 (1899) (affirming trial court order dismissing an indictment charging woman with the murder of her unborn child); People v. Weible, 45 Pa. Super. 207 (1910) (jury verdict finding woman guilty of self-abortion overturned by trial court, whose ruling was affirmed on appeal); Grissman v. State, 245 S.W. 438 (Tex. Crim. App. 1922) (in reversing conviction of abortionist, court noted that the woman upon whom he had performed the abortion had been indicted in the same case, but there is no evidence that woman was ever prosecuted or, if prosecuted, convicted); People v. McAlpin, 270 N.Y.S.2d 899 (Nassau County Ct. 1966) (dismissing homicide charge based upon self-abortion); Wheeler v. State, 263 So.2d 323 (Fla. 1972) (reversing conviction of woman upon whom abortion was performed). These cases must be distinguished from infanticide cases where the child was born alive and was then killed by the criminal agency of the mother (or other actor).
9. “A reading of the statute indicates that the acts prohibited are those which are performed upon the mother rather than any action taken by her. She is the object of the acts prohibited rather than the actor. The class of persons against whom the statute is directed does not include those upon whom abortions are performed. Most similar state statutes are so construed.” State v. Barnett, 437 P.2d 821, 822 (Ore. 1968). See also Hatch v. State, 459 S.W. 2d 420, 422 (Ark. 1970) (same); Hatfield v. Gano, 15 Iowa 177, 178 (1863) (same); Simmons v. Victory Industrial Life Insurance Co. of Louisiana, 139 So. 68, 69–70 (La. Ct. App. 1932) (same); People v. Weible, 45 Pa. Super. 207, 209 (1910) (same).
10. See, e.g., People v. Clapp, 151 P.2d 237, 239–40 (Cal. 1944); State v. Carey, 56 A. 632, 636 (Conn. 1904); State v. Proud, 262 P.2d 1016, 1019 (Idaho 1953); State v. Tennyson, 2 N.W.2d 833,
836 (Minn. 1942); People v. Vedder, 98 N.Y. 63, 632 (1885); Wilson v. State, 252 P. 1106, 1107–08 (Okla. Crim. App. 1927); State v. Cragun, 83 P.2d 1071, 1073 (Utah 1934).
11. See People v. McAlpin, 270 N.Y.S.2d 899 (Nassau County Ct. 1966).
12. Research results based on a review of all pre-Roe state abortion cases in which the word “victim” appears (Nexis-Uni).
13. See, e.g., Dunn v. People, 29 N.Y. 523, 527 (1864) (woman upon whom abortion was performed “did not stand legally in the situation of an accomplice, for, although she no doubt participated in the moral offense imputed to the defendant [abortionist], she could not have been indicted for that offense; the law regards her rather as the victim than the perpetrator of the crime”); State v. McCurtain, 172 P. 481, 482 (Utah 1918): “While, no doubt, the female who requests or consents to a criminal operation with a view of producing an abortion is morally in fault, yet she is not guilty of the offense, and cannot be prosecuted under the statute. She therefore is not an accomplice.” Watson v. State, 9 Tex. Crim. 237, 244, 245 (1880) (“The rule that [the woman upon whom an abortion is performed] does not stand legally in the situation of an accomplice, but should rather be regarded as the victim than the perpetrator of the crime, is one which commends itself to our sense of justice and right, and there is certainly nothing in our law of accomplices which should be held to contravene it”) (recognizing that the woman is implicated in an abortion in a moral sense).
14. Basoff v. State, 119 A.2d 917, 923 (Md. 1956) (citing cases).
15. “When an Rh negative woman is pregnant with an Rh positive child, her blood develops antibodies which do not affect the [existing] pregnancy, but can cause damage to later conceived Rh positive fetuses. An injection of RhoGAM during the first pregnancy can prevent the formation of these antibodies.” Walker v. Rinck, 604 N.E.2d 591, 593, n. 1 (Ind. 1992) (citing 3 Attorney’s Dictionary of Medicine at p. R-84 (1986)). RhoGAM “is a trademark of a preparation of Rh immune globulin” which “is used to prevent the formation of antibodies [to RH positive blood] in Rh negative women.” Id. (citing 3 Attorney’s Dictionary of Medicine p. R-92 (1986)). For a comprehensive discussion of this phenomenon, see Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.2d 235 (Tenn. 2015).
16. See Maarit Ninimaki, et al., Immediate Complications After Medical Compared With Surgical Termination of Pregnancy, 114 Obstetrics & Gynecology 795, 795 (Oct. 2009) (reporting that “[t]he overall incidence of adverse events was fourfold higher in the medical compared with surgical cohort”) (study covered 22,368 medical abortions and 20,251 surgical abortions performed during the first 63 days of gestation over the period 2000–2006 in Finland). See also Ushma D. Padhyay, et al., Incidence of Emergency Department Visits and Complications After Abortion, 125 Obstetrics & Gynecology 175, 181 (Jan. 2015) (reporting that “[m]edication abortions were 5.96 . . . times as likely to result in a complication as first trimester aspiration abortions”) (study covered 54,911 abortions performed on Medi-Cal patients in 2009 and 2010).
17. “We believe . . . it was error for the trial court to restrict the defendant’s cross-examination of the witnesses who were granted immunity. The defendant has a right to bring out the motives of the state witnesses on cross-examination. [Citations]. The defense has a right to know the basis for the immunity; what other promises were made, if any; and whether the witness has been influenced or coached by the prosecution.” State v. Gresens, 161 N.W.2d 245, 248 (Wis. 1968). See also State v. Madden, 201 N.W. 297, 297 (Minn. 1924) (citation and internal quotation marks omitted): “It bears against a witness’ credibility that he is an accomplice in the crime charged and testifies for the prosecution; and the pendency of any indictment against the witness indicates indirectly a similar possibility of his currying favor by testifying for the state; so, too, the existence of a promise or just expectation of pardon for his share as accomplice in the crime charged.”
18. One response to this is that while it might be appropriate in some or even most cases to grant the woman immunity in order to secure her testimony against the more culpable third party, she should not be entitled to “blanket immunity” so that she could never be charged. It is not at all unusual, however, for a statute to be drafted in such a way that one party who participates in a criminal act is not subject to prosecution while another is. “When Congress assigns guilt to only one type of participant in a transaction, it intends to leave the others unpunished for the offense.” United States v. Amen, 831 F.2d 373, 381 (2d Cir 1987) (citing Gebardi v. United States, 287 U.S. 112 (1932) (acquiescing woman not guilty of aiding and abetting Mann Act violation) (the Mann Act, 18 U.S.C. § 2421, prohibits the knowing interstate transportation of any individual with the intent that the person engage in prostitution or any sexual activity that is illegal under federal or state law), and United States v. Farrar, 281 U.S. 624 (1930) (liquor purchaser not guilty of aiding and abetting illegal sale). Further, if in the overwhelming majority of cases, it would be appropriate to grant the woman immunity in order to pursue the more culpable party, why jeopardize prosecution of those cases simply for the purpose of preserving a largely theoretical ability to prosecute her in a small minority of cases?
19. See Paul H. Robinson, et al., The American Criminal Code: General Defenses, 7 J. Legal Analysis 37, 52–53 & nn. 37-42, 49, 117 (table 2) (2015) (forty-nine out of the fifty States allow the use of deadly force against threats of death or serious bodily injury).
20. See Wayne R. LaFave, Criminal Law 710–20 (6th ed. 2017).
21. “The complete ‘innocence’ of the fetus makes it radically distinguishable from the actual or apparent aggressors with whom self-defense law has always been designed to deal. Legally speaking, the fetus is more ‘innocent’ than even an insane aggressor, who is innocent for purposes of criminal law, yet liable in tort for the harm insanely (and unlawfully) done to others. The fetus is not only not acting voluntarily; it is not acting at all. Instead, it is developing according to a natural progression. The complete absence of both mens rea and actus reus leaves the fetus innocent of any responsibility for the predicament in which it and the woman now find themselves. It is therefore axiomatic that in no pregnancy can the fetus be more responsible for the dilemma than the woman.” Stephen G. Gilles, What Does Dobbs Mean for the Constitutional Right to a Life-or-Health-Preserving Abortion?, 92 MISS. L. REV. 271, 313–14 (2022) (emphasis in original).
22. LaFave, Criminal Law 689.
23. Model Penal Code § 3.02(1)(a) (American Law Institute 1962). See also Robinson, n. 18, supra, 7 J. Legal Analysis at 42 & n. 44 (at least forty-four of the fifty States “recognize a lesser evils [i.e., necessity] defense”).
24. LaFave, Criminal Law 650–51.
25. Most of the “abolitionists’” proposals provide that the offense of homicide does not apply “to the unintentional injury or death of an unborn child when resulting from . . . the undertaking of procedures to save the life of the mother when accompanied by reasonable steps, if available, to save the life of her unborn child ” Georgia H.B. 441 (2025–2026 Sess.), p. 3, lines 54–57 (emphasis added).
While this exclusion might apply to non-abortional conduct (e.g., providing radiation treatment to the mother to prevent her death from cancer), it would not apply to abortions, as such, where the injury or death of the unborn child is seldom, if ever, unintended. It is a well-established principle of criminal law that “a person intends the natural consequences of his acts.” Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005).
26. 410 U.S. 113, 173 (1973) (Rehnquist, J., dissenting).
27. 597 U.S. 215, 339 n. 2 (2022) (Kavanaugh, J., concurring) (citing Justice Rehnquist’s dissent in Roe). See Gilles, 92 Miss. L. Rev. at 292–99 (arguing that there is a federal constitutional right to a life-preserving abortion, but not a health-preserving abortion).
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Original Bio:
Paul Benjamin Linton, an attorney in private practice, has been professionally engaged in the pro-life movement for over 35 years. His highly acclaimed book Abortion Under State Constitutions: A State by State Analysis, first published in 2008 and now in its third edition (Carolina Academic Press, 2020), is the only comprehensive study of its kind.
