Abortion law’s criminal loophole

SAMUEL W. BUELL is a visiting professor at the University of Texas School of Law.

WHAT IF THE Supreme Court overrules Roe vs. Wade by allowing South Dakota’s new abortion statute to pass constitutional review? Abortion, which has been governed in our time by constitutional law, again would be a matter of criminal law. The chief question would be: Who goes to prison?

South Dakota’s legislators included this language in their new law: “Nothing in this act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.” If abortion is a crime, why excuse the woman from punishment?

In the century or so before Roe vs. Wade, when criminal abortion laws were abundant in the United States, legislatures often explicitly exempted the woman’s behavior from abortion statutes. When they did not, prosecutors and courts found ways to avoid punishing the woman.


In those days, such moves were justified by rationales such as this, from the Connecticut Supreme Court in 1904: “The public policy that underlies this legislation is based largely on protection due to the woman, protection against her own weakness as well as the criminal lust and greed of others. The criminal intent and moral turpitude involved in the violation, by a woman, of the restraint put upon her control over her own person is widely different than that which attends the man who, in clear violation of the law, and for pay and gain of any kind, inflicts an injury upon the body of a woman endangering health and perhaps life.”

Surely the South Dakotans won’t offer such a justification now. Society and the law have entombed the idea that women are weaker of will and less responsible than men. Justice William Brennan, writing in a landmark 1973 case about gender discrimination, stated the modern view: “Our nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”

As for the Connecticut court’s desire to protect women, science has rendered outdated concerns that abortion prohibitions might be necessary to protect women against hazardous medical practices.

The South Dakotans might instead say their law is like others that shield willing participants in criminal activity. In instances of narcotics use and prostitution, for example, we often choose not to punish violators we believe are victimized by the more culpable activity of others. But if abortion should be thought a crime at all, surely it should not be understood as a form of low-level vice. The point of criminalizing abortion, we are told, is to preserve human life, not fortify the health or moral fiber of the pregnant woman.

Another argument might be that penalizing abortion providers -- rather than one-time or occasional users of their services -- is a more effective method for deterring abortions. Going after repeat providers rather than users could be smart policing, but it’s a bad way to shape a legal principle. We wouldn’t have a murder law that limited criminal responsibility to those who kill more than once.

An advocate for exemption might also say that women would be more likely to agree to testify against their abortion providers if they did not fear self-incrimination. But would that happen often enough to justify a complete legal exemption for women? One could as easily argue that making women liable creates leverage to pressure them to testify. It’s not surprising that no proponent of criminalized abortion has waded into this kind of enforcement analysis, which is routine in most criminal law matters but quickly gets unsettling in a discussion about abortion.


In truth, if, as the South Dakota Legislature emphatically has said, abortion is a crime against human life, only one explanation exists for the decision to excuse the pregnant woman from criminal responsibility: political strategy. If the public believed that banning abortion would mean jailing women, those who seek to criminalize abortion could not hope to achieve their goal.

Debate about the constitutional right to privacy and the future of Roe vs. Wade should not obscure the serious flaw at the heart of criminal abortion laws. With a legal exemption for the woman, such laws are either intentionally discriminatory or devoid of rational justification. Without such an exemption, they are politically doomed.