“The political claim—that women were or will be prosecuted or jailed under abortion laws—has been made so frequently by Planned Parenthood, NARAL, and NOW over the past 40 years that it has become an urban legend. It shows the astonishing power of contemporary media to make a complete falsehood into a truism.”
So begins a 2010 essay by Clarke Forsythe of the American Life League, one of the most respected legal minds and strategists of the pro-life movement.
The essay takes on added prescience and importance given the recent remarks of Donald Trump that women who have abortions ought to be punished, a statement he quickly and smartly walked back.
But, the fact that he so quickly gave voice to the verbiage of the abortion industry means that millions of Americans are once more thinking about what would happen in a post-Roe America. Would women really be jailed or punished in some way for having illegal abortions?
Forsythe says the answer lies in the past, in the days before Roe, and the answer is no. Women were never punished, and even the purest among pro-life advocates do not argue for punishing women in the future.
Forsythe shows that “…the almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortions, not women. In fact, the states expressly treated women as the second ‘victim’ of abortion; state laws expressly called the woman a second ‘victim.’ Abortionists were the exclusive target of the law.”
Forsythe says the policy decisions to target the abortionist and not the women was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.”
He says the only time women were hauled into court was when abortionists named the woman as an accomplice as a legal ploy to keep them from testifying against them so that the case would be thrown out.
There were “only two cases in which a woman was charged in any State with participating in her own abortion” — from Pennsylvania in 1911 and from Texas in 1922. There is no documented case since 1922 in which a woman has been charged in an abortion in the United States.”
The left charges that if abortion is ever illegal, women will be investigated for every miscarriage. But this was never true, either. “…spanning 50 states over the century before Roe v. Wade—it is even more certain that the political claim that any woman might be questioned or prosecuted for a spontaneous miscarriage has no record in history and will certainly not be the policy of any state in the future,” Forsythe says.
Forsythe shows that no woman was ever indicted or tried for abortion in the United States since 1922 and that no woman has ever been tried for a self-abortion in the United States. Even though one-third of the states had laws against self-abortion, no prosecutions were ever recorded in any of those states.
Forsythe points out that even “the pro-abortion historian Leslie Reagan, in her 1997 book When Abortion was a Crime, admits that states did not prosecute women for their abortions and that women did not face criminal liability as principals, accomplices, conspirators, solicitors, or murderers, and concedes that the purpose behind that law was not to degrade women but to protect them.”
Forsythe also punctures what he calls “a second myth,” that overturning Roe “will result in the immediate re-criminalization of abortion.” Rather, he says that if Roe were overturned today, abortion would remain legal in 42-43 states “and likely in all 50 states, for the simple reason that nearly all the state abortion prohibitions have been either repealed or are blocked by state versions of Roe…”
Trump’s statement that he would punish women simply shows how far he is from mainstream pro-life views and from historical accuracy. Someone quickly schooled Trump and he walked the statement back. Not even Donald Trump wants to punish women who have aborted.
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