Pro-lifers have unintentionally sowed the seeds of injustice by exempting mothers who get abortions from prosecution. They, too, should face consequences.

In March 1994, in Florida, 19-year-old mother Kawana Michele Ashley put a pillow over her stomach and “fired a .22 caliber pistol into the right side of her womb” in order to kill her six-month-old unborn daughter. Shot in the wrist, her baby was delivered by C-section and died of kidney failure two weeks later.

In May 1997, in Georgia, Jacquelyn Aretha Hillman, a 19-year-old single mother, shot herself in the stomach and killed her unborn child. She was eight months pregnant.

In Virginia, in March 2006, 22-year-old mother Tammy Wynette Skinner intentionally shot herself in the stomach the day she was supposed to give birth, after having contemplated “several ways to abort her child, including punching herself in the stomach and drinking bleach.” Her baby would have been named Kysharia.

In all of these cases, prosecution for the crimes of criminal abortion, murder, and manslaughter was dropped. The perpetrators could not be held liable because the statutes under which they were being prosecuted only applied to situations in which a third party committed the crime. As the Florida Supreme Court put it, the court would not “pit woman against fetus.”

Yet it is obvious that these mothers had pitted themselves against their unborn babies. This ugly truth is not overshadowed by the law’s refusal to acknowledge it.

A Miscarriage of Justice

These miscarriages of justice can’t be blamed on pro-choicers. These three children did not receive the justice they deserved because pro-life legislators and lobbyists have insisted that women are always victims in the abortion act, even if they do it themselves. When they aren’t the victim of an abortionist, they’re a victim of difficult circumstances, of poor mental health, or of society more generally.

These prosecutions weren’t dropped due to psychotic breaks or evidence of duress, though. They were dropped because pro-life statutes are intentionally written to exempt mothers from liability. Georgia’s Code Section 16-12-140 is a prime example:

(a) A person commits the offense of criminal abortion when, in violation of Code Section 16-12-141 , he or she administers any medicine, drugs, or other substance whatever to any woman or when he or she uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.

Any self-described pro-lifer should feel a flush of rage and heartbreak when reading about these cases. Heartbreak that a child died by the hands of his own mother; rage that no real justice was done on his behalf. Yet leaders of the pro-life movement proudly proclaim that women will not be prosecuted for abortions under heartbeat laws.

When smart, sincere pro-life thinkers like David French casually gloss over a court case in which a woman shot her own unborn child and wasn’t convicted for it, as if the horror of both the crime and the lack of justice isn’t at least worth mentioning, we have a problem.

When based on model legislation written by organizations like National Right to Life, Susan B. Anthony List, and Faith 2 Action, every piece of pro-life legislation introduced excludes mothers and fathers from legal penalty (bills put forth by abolitionists, on the other hand, don’t give exemptions). This includes Alabama’s recently signed abortion ban and Georgia’s recently signed “heartbeat bill,” as French aptly points out.

Unfortunately, the motherhood exemption to abortion prosecution will yield more tragic and unjust results. This principle, while seemingly compassionate and sensible on its face, is unjust and unloving toward unborn children and abortion-minded parents.

1. Exemptions Effectively Create a Right to a DIY Abortion

The motherhood exemption provides a tremendously flexible framework in which pro-choice lobbyists can still achieve their goal of “safe” and accessible abortions. The New York Times published an article last week from Cari Sietstra, a board member of the National Abortion Federation, encouraging pro-choice advocates to work toward a do-it-yourself (DIY) abortion industry that is allowed under pro-life legislation.

We can work to fully decriminalize self-induced abortions. This is an area where all Americans, including pro-life Americans, can work together. The pro-life movement has insisted for decades that women should not be prosecuted for self-abortion … Working together to decriminalize self-managed abortion will curb these risks.

Abortion abolitionists have been sounding the alarm on the rise of DIY abortions for years, yet have made little headway in getting pro-life leaders to factor it into their policy proposals.

As Sietstra pointed out, the pro-life legislative agenda literally creates a right to abortion as long as the killing isn’t done by a third-party. The abortion industry is already expanding its push for DIY abortions. Pro-life regulations may shut down a few abortion mills and reduce surgical abortions, but the real accomplishment of such regulations is expediting the evolution of the abortion industry toward earlier, self-induced abortions.

For years, mail-order abortion pill services and abortion counseling services have been helping women kill their unwanted unborn children in countries where it is illegal. Two of them, Women on Web and Aid Access, recently began shipping to the United States. Another organization called Self-managed Abortion; Safe and Supported (SASS) has sprung up to “train” women how to kill their fetuses on their own, having already hosted more than 20 workshops before January.

Surveys reported on by Rewire News found that 2 percent of abortion patients had performed self-induced abortions. Also, there were 700,000 Google searches for self-induced abortion in 2015, and 200,000 Google searches for self-induced abortion within a 32-day span in 2017.

Hotlines such as the Self Induced Abortion Legal Team have been established to help mothers skirt the law while self-inducing abortions. These hotlines, working in tandem with abortion-pill-to-your-door companies, make self-induced abortion easily obtainable.

Those who think they can prevent DIY abortions by simply cutting off the black market supply of abortion-inducing drugs have another thing coming. The most effective of these drugs, misoprostol, is used to induce labor (when oxytocin isn’t available), as well as treat ulcers and postpartum hemorrhaging. Used alone, it’s estimated to be more than 90 percent effective at ending pregnancies, and the rate goes up when used in conjunction with mifepristone.

Sietstra argues, “We should start seeing [misoprostol] as a prophylactic drug that deserves a place in our medicine cabinets. We should ask our clinicians for prescriptions before we need it.”

If the pro-life movement’s goal is merely to shut down abortion mills and make sure abortions are done chemically rather than surgically, none of this matters. But if the goal is to actually prevent abortions, DIY abortions cannot be ignored.

2. Penalties Are Deterrents

Penalties for stealing don’t completely thwart thieves, but there’d be a lot more theft if such consequences didn’t exist. One of the few things on which pro-choice and pro-life people agree is that killing a baby in the womb is often an excruciating decision. While some women have an abortion without ever even considering keeping their baby, it is a close call for most. Pro-lifers see this as a reason to build a shield of “compassion” into the law by exempting everyone from prosecution but the abortionist. This is a deeply flawed position.

Pastor and activist Jason Storms illustrated why from experience at a hearing for the Abolition of Abortion in Texas Act (HB 896) on April 8. “I was guilty as an accomplice in the murder of my own child, and I should have been prosecuted accordingly,” Storms told the Texas House Judiciary and Civil Jurisprudence Committee.

Mothers and fathers – parents – right now in Texas can be charged with parental neglect, parental abuse, and even parental homicide when we see the tragedy of parents taking the lives of their own children. It’s because mothers and fathers have a duty to love and protect their children. That responsibility doesn’t start when they’re born, but it starts when they’re conceived. Here’s a fact: my girlfriend and I, if we knew we would’ve been facing homicide charges, would never have aborted that child. That child would be alive today. I’d have a 22-year-old little child that I could celebrate life with right now that’s not here. The law is a deterrent to crime. We shouldn’t think of this only as a matter of putting a woman on the stand. We should think of this as a great deterrent. Men and women would not think of doing this if we stood firm on the law and provided equal protection for these children.

The calculus about ending the life of a unborn son or daughter changes drastically when severe penalties are implemented. If the potential for homicide charges is added to one side of the scale, abortion is no longer a close call for anyone for whom it was previously.

It is illogical to consider parents’ behavior in a future where abortion is legally considered murder exactly the same way their behavior is considered now when abortion is legal, widely accessible, and thoroughly destigmatized in many communities. Removing immunity for mothers who choose abortion doesn’t mean we’ll charge a million mothers and fathers who made excruciating decisions with murder. It means the vast majority wouldn’t have made that choice.

We should all appreciate that difficult circumstances often factor into mothers and fathers aborting their babies, and no bill has proposed any sort of retroactive punishment of parents who made this decision legally. (Even if some legislator wanted to, retroactive penalties are unconstitutional). Pro-lifers are also right to point out the damage done to the souls and psyches of those who have their children killed, which in itself is a form of punishment for those who eventually admit to themselves what they did.

But it is not “loving them both” to leave such a ghastly option on the table that people are free to make with impunity as if it were on par with running a red light when no cops are present.

Rather than denying unborn boys and girls equal protection and allowing parents to self-induce abortion, it’s loving to instead provide robust support for mothers and fathers before, during, and after birth, from diapers to formula to medical care to shelter to adoption services. Pro-lifers have built incredible networks of support to save babies and show mothers and fathers facing difficult circumstances the love of Christ, no matter what they did or didn’t do to contribute to their present dilemma.

3. Roe v. Wade Relied on Pro-lifers’ Inconsistency

As they argue for blanket exceptions, pro-life leaders often highlight the fact that pre-Roe abortion laws did not penalize mothers and fathers for abortion, only abortionists. Many pro-lifers would be surprised to find out that abortion bans that provided full and automatic immunity to parents who have their children killed formed part of the rationale for the majority ruling in Roe v Wade.

Dallas District Attorney Henry Wade, who was representing the state of Texas in the 1973 case, argued that the 14th Amendment’s equal protection clause provided unborn human beings protection against murder, just like the law protected everyone else against murder. However, Texas’ anti-abortion laws at the time didn’t legally penalize anyone but the abortionist. Justice Harry Blackmun thus saw an avenue by which to claim that Wade and pro-lifers didn’t even believe the argument they were making. Blackmun details this in footnote 54 of the Roe v. Wade decision.

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?

Abortion was not even categorized as murder pre-Roe. Giving commissioners of the murder full immunity in all cases meant the standard of justice afforded to unborn human beings was far lower than the standard of justice afforded to born human beings. These laws are not a standard to try to return to, but a terrible mistake that we must learn from.

The Alternative: Abolition

There is a better way to end abortion than the tactics currently pushed in the mainstream pro-life movement: abolition. Abortion must be abolished through laws establishing the equal protection of the laws against murder for born and unborn humans alike. The murder of an unborn boy or girl will be treated exactly the same as the murder of a toddler or older child. Such laws are nothing more than the application of the equal protection clause of the 14th Amendment to state law.

Any true abolition bill must ignore the precedent of a lawless Supreme Court that has, for 45 years, denied an entire class of human beings their fundamental rights. Abolitionists of slavery were right to nullify the Supreme Court’s dehumanizing decisions then, and abolitionists of abortion are right to do so now.

States are under no constitutional obligation to abide by Roe, and are in fact obligated to ignore it and provide equal protection of the law to all human beings, as described in the 14th Amendment. According to the Article VI, the Constitution itself is supreme—not a rogue court’s twisting of it.

Such legislation has been introduced in Oklahoma, Indiana, Texas, Idaho, and Washington. These bills were not killed by Democrats and the abortion lobby; they were killed by Republican politicians and prominent pro-life lobbyists.

Oklahoma state Sens.Jason Smalley and Greg Treat killed the Abolition of Abortion in Oklahoma Act (OK SB13) with the blessing of National Right to Life Vice President Tony Lauinger, who refused to even call abortion murder when asked point-blank in this 2016 interview. State Rep. Jeff Leach killed the Abolition of Abortion in Texas Act (TX HB896) with the blessing of Texas Alliance for Life, Abby Johnson, Brian Fischer of Human Coalition, and others. Indiana State Reps. Ben Smaltz and Brian Bosma killed the Protection at Conception Act (IN HB1430) with the blessing of Indiana Right to Life. And so on.

These efforts to thwart the attempts at achieving full equality for the unborn were deeply misguided and immoral. They illustrate the desperate need for leadership who understand the terrible position conventional pro-life thought has put us in, and whose primary objective is nothing short of justice. Pro-life legislation that creates the right to DIY abortion and fails to categorize abortion as murder does not deserve our support.