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Will Women Be Put in Jail?

ve8QAd   |   October 01, 2008

“We have questions John McCain. Will you stand by as states put women in jail?” (TV ad 9/22/08 by National Institute for Reproductive Health)

Re: The Pro-Life Amendment on the Colorado Ballot. “Goes too far…” It could, “cause women to be investigated for miscarriages.” (Fofi Mendez, “No on 48 Campaign”)

“The McCain-Palin ticket wants to put women in prison for having an abortion after they have been raped.” (Missouri Senator C. McCaskell with ABC’s George Stephanopoulos)

The above quotes had national exposure all within a single week. Yes, this is an intense political campaign, but such absolute falsehoods cannot be allowed to stand. All three of these quotes, and there will probably be more that are similar, are saying the same thing. If you elect the McCain-Palin ticket, they will reverse Roe vs. Wade and then states will forbid abortion. Women will still get them, be arrested and put in jail. That’s the line. It is a series of falsehoods. Let’s take them apart, one by one.

First of all, if the pro-life ticket of McCain-Palin is elected, we can be reasonably assured that the new president will nominate justices to Supreme Court vacancies who would reverse Roe vs. Wade. First, however, they must be confirmed. In all probability the Senate will remain with a majority opposed to such nominees. But for the moment, let’s assume a new president is successful.

This would only take a federal mandate away and return the nation to the status quo prior to Roe vs. Wade. That is, the federal courts will no longer have a say in whether an abortion is legal or not. If Roe is reversed, each state legislature will then determine whether that state will permit it partly, entirely, or restrict it in certain ways. Pro-abortion harbingers of doom have announced that at least twenty states will completely forbid all abortions. This is a clear exaggeration. Some will, but very few will prohibit abortion completely. A certain number will prohibit all abortions except those for rape, incest, and/or fetal handicap. Then there will be others who merely limit it to three months or make certain other exceptions. Finally, there will be the California and New York-types who will maintain abortion-on-demand for nine months.

Take states that do forbid, let’s say, all abortions except to prevent the death of the mother. Are these the ones that may put women in jail? As a matter of fact there is a very definitive and lengthy history in the United States detailing how such women were treated when all abortions were illegal except for the life of the mother. Let’s take a look.

The charges above are not new. In April 1981, a full-page Planned Parenthood advertisement in the Washington Post warned, “If you have a miscarriage, you could be prosecuted for murder.” In today’s intense election campaign, such false charges need to be refuted. Accordingly, we turn to a legal investigation of the history of whether or not women were ever prosecuted for abortion in the United States.

We have in our office, copies of a ten-page legal brief entitled Women and Abortion, Prospects of Criminal Charges, by Paul D. Wohlers, JD. This was published by the American Center of Bio-Ethics in 1981. The study is substantiated by eleven major footnotes referencing 29 different legal decisions on this subject. Further, it contains an appendix, listing 143 state laws confirming the illegality of abortion. While some pro-abortion spokespeople maintain that statutory restrictions on abortion would result in prosecution of murder for such women, and possibly even for miscarriages, pro-lifers have definitively disputed these claims. This research shows that a return to traditional prohibitions on abortion would result in neither murder charges against women nor criminal investigation of miscarriage. This study penetrates the excessive rhetoric on this volatile issue by comprehensively examining the enforcement of abortion statutes prior to the Roe vs. Wade decision in 1973.

The American legal system’s reliance on precedent makes the outcome of past cases essential in determining the probable outcome of future cases. If and when our legal system ever does criminalize abortion, judges will seek guidance in the pre-Roe vs. Wade decisions, which constitute a virtual textbook on the enforcement of state abortion laws.

We note that past court decisions tended to treat women who underwent abortions, not as perpetrators of illegal acts, but as victims. These women were never charged with murder, seldom named co-conspirators and still more rarely regarded as accomplices. Extensive examination of case law in all fifty states prior to the Roe vs. Wade decision reveals not a single instance of the filing of murder charges against a woman who obtained an abortion.

I quote the conclusion of this study: “No evidence was found to support the proposition that women were prosecuted for undergoing or soliciting abortions. The charge that spontaneous miscarriages could result in criminal prosecutions is similarly unsupportable. There are no documented instances of prosecution of such women for murder or for any other species of homicide; nor is there evidence that states that had provisions enabling them to prosecute women for procuring abortions ever applied those laws. The vast majority of courts were reluctant to implicate women even in a secondary fashion through complicity and conspiracy charges. Even in those rare instances where an abortionist persuaded the court to recognize the woman as his accomplice, charges were not filed against her. In short, women were not prosecuted for abortions. Abortionists were.

“The charges of Planned Parenthood and other ‘pro-choice’ proponents are without factual basis. Given the American legal system’s reliance on precedent, it is unlikely that enforcement of future criminal sanctions on abortion would deviate substantially from past enforcement patterns.”

Having been one of the founders of the pro-life movement here and abroad, I have been deeply involved in this issue since it arose back in the 1960s. I have personally known most of the pro-life leaders around the world. I have spent time with them, discussed these issues, worked out arguments and worked out solutions. I have never met a pro-life person who held any responsible position in this movement who would have put such women in jail. Every one of the leaders I have known see the woman as the second victim, a person who needs care, help, guidance and alternatives offered to her. Do you know of any pro-abortion sympathizers who would put her in jail? This is highly unlikely. Accordingly then, if none of the above would charge her or pursue an action, who would?

During election cycles, wild charges are often thrown. In this case, if the “threat” of “putting women in jail” is raised, the above should be an absolute, definitive and total refutation of such a charge. Please contact our office for more information on the 1981 study.

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