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The Abolitionists are a new faction of the pro-life movement. They believe that the only truly pro-life position is to pass laws that recognize the crime of abortion is murder and that all who participate in abortion, including the mother, should face the criminal penalty for murder, including the death penalty where it is a criminal penalty for murder. Previously, I have written why practically this is a bad idea.1 If one wants to have the fewest numbers of abortions, one should target abortionists and those who traffic abortion pills, who can potentially kill thousands of unborn children, not the mothers who at most are responsible for a tiny fraction of the abortionists’ toll. To convict these kingpins, one will most likely need the mother’s testimony, and the best way to get the testimony is by giving mothers immunity. Mothers should be given blanket immunity because that best protects the unborn child.

But not only do the Abolitionists believe prosecuting mothers is a good idea, they believe that it is constitutionally mandated. Their argument is that the Equal Protection Clause of the Fourteenth Amendment means that the unborn child’s right to life must be protected by applying the criminal penalties for murder to everyone involved in an abortion. There are two legal difficulties with this argument. The first is that the federal courts have not recognized the personhood of the unborn. However, many pro-life scholars believe that the unborn should be recognized as persons under the Constitution. The second is that when evaluating a law from the perspective of equal protection, unless there is a fundamental right or a protected class at issue, laws that do not treat all with equality are evaluated using the rational basis standard. If there is a rational basis for departing from exact equality, the law is not unconstitutional. There is not a fundamental right or protected class at issue and there is a rational basis for not prosecuting mothers. The rational basis is that immunity results in fewer abortions. While one may contest this argument, it is at least a rational argument. The laws that provide immunity for mothers are constitutional and they save lives. Further, by making their arguments, Abolitionists imperil all pro-life laws. The capital prosecution of a scared sixteen-year-old girl for getting an abortion would surely lead to a backlash.

Who are the Abolitionists?
The Abolitionists are latecomers to the pro-life fold. Currently, they are a regional group. Abolish Abortion Texas – their flagship organization –was founded in 2016.2 All references to the Abolitionists in this paper are references to Abolish Abortion Texas, as it appears to be the first and largest Abolitionist group. They seek to pass laws that make abortion the crime of murder and do not exclude mothers from prosecution. However, Abolitionists are spreading to other states.3 Their name is a slogan that virtually all pro-life groups could use. The pro-life movement is about abolishing abortion. Because the unborn child is a human person, the pro-life movement is devoted to protecting the unborn child from conception. But to the Abolitionists, either you believe that the mother who gets an abortion has committed a capital crime or you are not really pro-life. Their website has a page that instead of confronting the real arguments against their position, engages against certain straw man arguments and concludes that those who don’t buy their argument that equal protection is a simple thing are at best suffering from “born privilege” and are acting contrary to the Bible.4 An example of recent Texas legislation shows how the Abolitionists disagree with the rest of the pro-life movement.

What the Non-Abolitionist Accomplished
In Texas, the pre-Roe criminal abortion laws date back to the nineteenth century and were never repealed. However, the penalties for violating these laws are not great. The penalty for intentionally or knowingly using a procedure to procure an abortion is two to five years in the penitentiary. But the penalty is doubled if the procedure is done without the woman’s consent.5 In 2021, the Texas Legislature at the request of pro-life groups, passed two laws aimed at stopping abortion: the Texas Heartbeat Act and the Human Life Protection Act.

Texas Heartbeat Act
The Texas Heartbeat Act requires a physician to determine whether the unborn child has a heartbeat.6 If a heartbeat is detected, the physician may not perform an abortion unless the requirements of the life and health exception are met.7 What is unique about the Texas Heartbeat Act is that the only enforcement of the law is through civil lawsuits that may be brought by any person who is not an officer or employee of state or local government.88 Because no state official enforces this law, one cannot sue a state or local official to enjoin enforcement of the law. Hence, the only way for the abortionists to challenge the law is as a defense to a lawsuit filed against them. The law also exempts mothers from these civil penalties.9 While the abortionists attempted to enjoin the law, the United States Supreme Court allowed the law to take effect.10 The Texas Heartbeat Act did not prohibit all abortions in Texas, but the Heartbeat Act resulted in a major reduction in abortions in Texas. The Texas Heartbeat Act was the principal protective law in Texas until the Supreme Court overturned Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992) in the case of Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). When the Heartbeat Act took effect, there were 53,473 abortions in Texas during the previous twelve months, an average of 4,456 per month.11After the Heartbeat Act took effect, there were 23,571 abortions for the 10 months before the Human Life Protection Act went into effect, an average of 2,357 per month.

Human Life Protection Act
The Human Life Protection Act is sometimes referred to as a trigger law because it is designed to only go into effect if a particular event happens and triggers the enforcement of the law. The statutory triggers for the Human Life Protection Act are a United States Supreme Court decision that overrules Roe v. Wade, 410 U.S. 113 (1973) as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992); any other United States Supreme Court decision that allows states to prohibit abortion; or the adoption of an amendment to the United States Constitution that allows states to prohibit abortion.12 The Human Life Protection Act makes abortion a crime from beginning at fertilization through birth, with exceptions to protect the life and health of the mother.13 While some health exceptions have been poorly drawn and have allowed virtually all abortions, Texas’ combined life and health exceptions require reporting and the reports show that no more than eleven abortions per month have been done under the life and health exceptions. From the time the Human Life Protection Act took effect until September 2024 (the date of the most recent statistics) there have been zero reported elective abortions performed in Texas at abortion facilities and a total of 135 abortions have been done in hospitals under the life and health of the mother exceptions.14 If the unborn child dies as a result of an abortion, it is a felony of the first degree, which is punishable up to 99 years in prison.15 The mother is exempt from penalties under the law.16 Challenges to the constitutionality of the Human Life Protection Act have been unanimously rejected by the Texas Supreme Court.17

Why the Abolitionists Reject the Heartbeat Act And the Human Life Protection Act
One might think that Abolish Abortion Texas would be all for the Texas Heartbeat Act and the Human Life Protection Act. However, this is where the Abolitionists show their uniqueness. For the Abolitionists, these laws that shut down all abortion facilities and raise the criminal penalties for abortion up to 99 years are not laws that should be supported because, in their opinion, there is a massive loophole. These laws do not allow for the prosecution of the mother.18 The Abolitionists see this as fundamentally unfair and a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which provides, “No state shall . . . deny to any person within its jurisdiction the equal protection of he laws.”19 The Abolitionists believe “that equal protection just means that laws that protect preschool children and other born persons from being murdered should also protect preborn children from the same thing.” Laws like the Texas Heartbeat Act and the Human Life Protection Act have explicit exemptions to prevent the prosecution of the mother and, hence, according to the Abolitionists, violate equal protection. The Abolitionists rely in part on an argument from the majority opinion in Roe v. Wade:

When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma… [I]n 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? If the fetus is a person, may the penalties be different?20

The Roe court notoriously misrepresented the history of abortion law. This is another example. As will be seen below, the Roe court did not attempt to deal with arguments for why mothers were not prosecuted. But does the exemption from prosecution for mothers deny equal protection to unborn persons, and does it violate the Equal Protection Clause of the United States Constitution? Perhaps an analysis of the history of abortion legislation in the United States might shed some light on these propositions.

History of Abortion Legislation
In the United States abortion was a crime under common law. The American courts, incorporating English common law, held abortion to be a crime.21 Under common law, abortion was not an easy crime to prove. To convict a person for abortion under common law, the state needed to prove:

(1) the woman on whom the abortion was attempted was actually pregnant;
(2) the fetus was alive
at the time of the attempt; and
(3) the attempt caused the death of the fetus22

Beginning in the nineteenth century, states began to pass statutes criminalizing abortion:

At the end of 1849 eighteen of the thirty states had enacted antiabortion statutes, and by the end of 1864 twenty-seven of the thirty-six states had done so. At the end of 1868, the year in which the Fourteenth Amendment was ratified, thirty of the thirty-seven states had such statutes, including twenty-five of the thirty ratifying states, along with six territories.23

Despite this long history of abortion being a statutory and common law crime, there has not been a successful prosecution of a mother in the history of the United States for obtaining an abortion. In fact, in case law, there are just three cases that indicate that the prosecution of the Despite this long history of abortion being a statutory and common law crime, there has not been a successful prosecution of a mother in the history of the United States for obtaining an abortion. In fact, in case law, there are just three cases that indicate that the prosecution of the mother for abortion was even attempted before Roe v. Wade.24 To the question why were mothers not prosecuted, there are three responses:

(1) due to the extreme danger of undergoing an abortion before proper sanitation and antibiotics became standard practice, any woman who underwent an abortion was considered to act in desperation;
(2) the paternalism of the era that limited women’s criminal responsibility just at it limited their civil rights; and
(3) by not prosecuting women, it made it more likely that abortionists would be convicted.25

The first two reasons lack much current force. While taking abortions drugs without medical supervision presents real dangers, this pales in comparison to nineteenth century abortions. Civil equality of men and women is the law of the land. However, the third reason has not been eroded by time. Witherspoon explains the the third reason:

Third, this immunity might have been motivated in part by practical considerations. Often the only testimony which could be secured against the criminal abortionist was that of the woman on whom the abortion was performed; perhaps the woman was granted complete immunity so that she would not be deterred from revealing the crime
or from testifying against the abortionist by any risk of incurring criminal liability herself. That the non-incrimination of the woman’s participation was motivated by this practical consideration is indicated by the fact that those states which did incriminate the wo- man’s participation often enacted statutes granting a woman immunity from prosecution in exchange for her testimony, or providing that this evidence would not be admissible in any criminal prosecution against her. State legislatures which did not incriminate the woman’s participation probably thought that this method was not sufficient to avoid deterring the woman from revealing the crime and testifying against the abortionist.26

The need for the mother’s testimony against the abortionist was important because, as previously noted, to secure a conviction for abortion one had to prove that the woman was pregnant; the child was alive when the abortion was attempted; and the attempt caused the death of the child. The practical reason for exempting women from prosecution is just as valid today as it was during the nineteenth century.

Why Abortion Is a Unique Form of Homicide?
One might say that abortion should be treated just like any other homicide. Anyone who is intentionally involved in an abortion should be prosecuted to the same extent as anyone who is involved in the intentional killing of a person after birth. However, there are a number of reasons why abortion is not just like any other homicide. Abortion is a unique crime. As previously noted, it is a difficult crime to prosecute. This springs from the very nature of abortion. Abortion is far more difficult to detect than the killing of a born person. This is so because the unborn child may only be known to exist by the mother and those who the mother tells; the body of the child is easy to kill and conceal; and even if it is proven that an unborn child has died there is the difficulty of proving the child’s death was not a miscarriage. Further, of the two people normally involved in an abortion-the abortionist and the mother- the abortionist has a far greater potential to be involved in additional abortions. If there is a question of which to prosecute the abortionist or the mother, the abortionist should be prosecuted.

Difference Between Abortion and Killing an Adult27
If someone were to kill a grown man, it is usually not hard to detect. Killing a grown man is not easy. The body has developed defenses and the man is unlikely to cooperate in his own death. The use of a gun could draw attention, as would a struggle with a knife or a blunt instrument. Assuming that the man is killed and no outsider witnessed it, it is likely that it will soon be known that the man was murdered. The man’s friends, family, neighbors and coworkers would notice the disappearance and seek to find him. Further, there would be a large decomposing body that would be hard to conceal. The body itself would likely provide clear evidence that the man was murdered. The murder of an adult man is not likely to remain a secret for long.

Compare this to an abortion. The unborn child is easy to kill. The child’s body is not nearly as robust as an adult’s body. In an abortion, there is no loud struggle that would bring people to the scene. The body is also easy to dispose of. Most importantly, who would know that the unborn child had even existed? The mother may have found that she was pregnant by the use of a pregnancy test that she bought at a grocery store. The mother and the abortionist may be the only ones who know of the existence of the unborn child. To convict someone of abortion it is likely that the testimony of the mother or the abortionist will be required. Even if the mother had told the father, a family member, or a friend, or if medical personnel conducted the pregnancy test, their inquiries could be allayed by saying, “I had a miscarriage.” Abortion is a very difficult crime to detect and, hence, it is difficult to secure a conviction for abortion.

Difference in Potential for Killing
Abortion normally requires only two people: the mother and the abortionist. There are biological limits to the number of abortions that a mother could have. The abortionist does not have the same biological limits to the number of abortions he could perform. Certain abortionists have accounted for thousands or tens of thousands of abortions. Abortionists are high on the list of all-time killers who have killed with their own hands.28 If the intention is to stop abortion, stopping an abortionist from participating in abortions has the potential to save far more lives than stopping a mother from participating in abortions. Hence, it makes sense to design laws so that it is easier to prosecute abortionists rather than mothers.

Prosecution
The difficulty of detecting abortion and the fact that the abortionist has a far greater potential for additional killings must be considered when designing laws against abortion. If a law allows prosecution of both the mother and the abortionist, how will a conviction be obtained? The testimony of either the abolitionist or the mother appears unlikely. Why would either testify as the testimony could be used against him or herself? There is the possibility that the mother might testify if offered immunity from prosecution. Prosecutors can give immunity to a participant in a crime so that other participants in the crime can be convicted when otherwise there would not be enough evidence to convict all of the participants or the most important participants in the crime. Giving immunity is done on a case-by-case basis. The use of immunity makes sense when a lower level criminal’s testimony is used to convict an individual who has greater criminal responsibility or who is responsible for more crimes. The archetype for this is the mafia foot soldier who is offered immunity to help convict a drug kingpin.

Prosecuting Without Immunity
If both the abortionist and the mother are responsible under the law, the abortionist could truthfully tell the mother, “We are now bound together. If you ever tell anyone about the abortion both you and I could go to jail or both get the death penalty. Keep this secret. Your future depends on this. ” Now whether or not the statement is true, an abortionist could make that statement. However, if it is well known that such a statement is false, it would have little effect.

It is highly unlikely that a mother would want to go straight to the police after an abortion. But a woman may have a religious conversion or experiencing the effects of abortion, she may decide abortion is wrong. Many mothers who have aborted a child come to recognize that abortion is wrong. But when this occurs, if the law made both the mother and the abortionist responsible, a woman would face prosecution if she told the police about the abolitionist-a person who kills children for money. If someone has the money, the abortionist is willing to kill. It is much more likely that the public will see an abortion conviction as a good thing if the abortionist is the one convicted. As noted above, there is the possibility of seeking immunity from prosecution. This assumes that the mother knows about immunity. But to get immunity, a mother would have to hire a lawyer and have the lawyer negotiate a deal with law enforcement. Bringing the abortionist to justice can risk prosecution of the mother, or at the very least, it can be expensive to retain a lawyer to negotiate an immunity agreement.

Prosecuting With Immunity
If mothers are given blanket immunity from prosecution, prosecuting abortionists
becomes significantly easier. In the abortion context, a blanket grant of immunity to the mother makes sense. An abortionist has the potential to be a mass murderer, unlike the mother. Giving the mother blanket immunity destroys the legal bond between mother and abortionist. It destroys the leverage the abortionist has over the mother. A mother who had an abortion could go to the police having no fear that she would be charged with the crime of abortion. She would not need to hire an attorney to try to negotiate immunity.

Not only does granting mothers blanket immunity make it easier to obtain convictions and, hence, take more abortionists off the streets. It would also serve to deter people from becoming abortionists. An abortionist would know that every time he or she performed an abortion that the mother might at any time go to the police without risking criminal liability. An abortionist would always be only one religious conversion away from facing a serious penalty. Because of this, it is more likely that a would-be-abortionist will not decide to do abortions knowing that conviction is more likely. Hence, both more abortionists will be convicted and fewer individuals will become abortionists. By focusing on the abortionist instead of the mother, more abortions will be prevented.

Further, the face of abortion that the public sees should not be a scared sixteen-year-old girl, but the hardened veteran of hundreds of abortions. Allowing mothers to be prosecuted for abortion will create a very dangerous media atmosphere. A mother is going to be a far more sympathetic individual than an abortionist. The mother may have real difficulties in her life. She may have been abandoned by the father of the child. She may not see how she can emotionally and financially care for her child. She may see the possibility of a bright career being snuffed out. There are many costs to raising a child and they are not easy to bear alone. Unlike the mother, an abortionist, hardly has a sympathetic justification. He is a hitman who kills for money. How the public views abortion can have significant effects. Laws that are not supported by the public are often not vigorously enforced and obtaining convictions is difficult. Further, the risk of a backlash against pro-life laws would be enhanced. The true target for prosecution should be the abortionists because this will save more lives.

Requirement of Additional Testimony
If a mother could be charged with the crime of abortion, testimony additional to the mother’s would be needed to convict the abortionist. There is an old common law doctrine that the testimony of an accomplice to a crime can only be credited if there is corroborating evidence. In Texas, this doctrine has been codified:

Testimony of Accomplice. A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed: and the corroboration is not sufficient if it merely shows the commission of the offense.29

The reason for this is that such testimony is often gained through the promise of immunity.30 It also might be the case that a participant in a crime may wish to make it appear that another participant was the one chiefly responsible for the crime. Further the defense attorney will likely ask the individual who is granted immunity: is not it true that the reason you are testifying against my client is the prosecutor granted you immunity? The accomplice testimony doctrine is a general criminal law doctrine. It applies to all crimes, not just abortion.

In the case of abortion, this doctrine could be a significant obstacle to obtaining a conviction. Prior to Roe,31 there were a fair number of cases that addressed the issue of whether a mother could be an accomplice to an abortion.32 A clear majority of these cases found that a mother could not be an accomplice.33 Because the mother could not be an accomplice in these cases, independent evidence was not necessary to secure a conviction in these cases and in most states. Also, the defense attorney could not ask about a grant of immunity by the prosecutor because that did not happen.

If laws were to be changed to make mothers accomplices, it would be more difficult to obtain abortion convictions. Due to the secretive nature of abortion as detailed above, it may be difficult or impossible to obtain corroborating evidence to support the mother’s testimony. Without the corroborating evidence, the mother’s testimony would have to be disregarded. The result is that prosecutions would not bring cases and abortionists would keep on killing.

Abortion Pill
The above analysis needs to be extended because of the so-called medical abortions. A medical abortion is an abortion that is accomplished through drugs. The abortion pill RU 486, which induces abortion, often used in combination with misoprostol, is an increasingly popular method of abortion. Because of RU 486, an abortion can be accomplished without surgery. Hence, an abortion can occur without an abortionist being present. Still, the mother must obtain the necessary drugs. In states where abortion is illegal, it is highly unlikely that a doctor would write a prescription for RU 486 for a pregnant woman. The prescription would be strong evidence that the doctor had participated in an abortion.

Pill Smuggling
To get the abortion drugs to the mother requires a supply chain. One type of supply chain would be similar to those for illegal recreational drugs. The two supply chains are not identical but there would be similarities.34 In both cases, a supply of the drugs would have to be secured. The drug would have to be transported to the buyer. The buyer and the seller would need to identify each other, set up an exchange, and execute the exchange.
In an article in the New Yorker, The Post-Roe Abortion Underground, the story of how abortion drugs are brought to Texas and distributed is told. The drugs are bought at Mexican pharmacies.35 Although, the buyers found this more difficult than expected. Some pharmacies refused to sell large quantities of drugs to them. Since the Mexican Supreme Court has made abortion legal in Mexico, there is probably little that American states that have banned abortion can do on the Mexican side of the border. Once procured, the drugs are then moved into Texas. The difficult part is connecting with buyers. The dealers are afraid they might be set up. Once they are convinced that the request is real, an exchange is arranged often at a secluded location.

On the American side of the border, at least in states like Texas that have banned abortion, the illegal trade in abortion drugs can be targeted just as the illegal trade in recreational drugs is targeted. The people who bring the abortion drugs into Texas are the equivalent to abortionists. These drug mules and retail sellers have the potential to be involved in the killings of hundreds or thousands. These smugglers and dealers are a choke point in the abortion trade. If they can be stopped, many illegal medical abortions can be stopped. Since under Texas law mothers cannot be prosecuted, the dealers will know, like the abortionists, that they could be turned into law enforcement by a woman who they sold to and could face a long prison term. It needs to be pointed out that interdicting abortion drugs is more difficult than interdicting recreational drugs. With recreational drugs the dealers wish to develop a base of customers who come back weekly or sooner. While there may be repeat customers for abortion drugs, they will be fewer in number than addicts and will not be consuming anything like the quantity of drugs consumed by an addict. This makes it more difficult to identify the sellers of abortion drugs. Providing immunity to mothers makes combating medical abortions easier, just as it makes it easier to combat surgical abortions. The goal of banning abortion is best achieved by giving mothers immunity. While the trade in illegal abortion drugs is thought to be extensive, no one knows how many abortion pills are being smuggled into Texas.

Abortion by Mail
Smuggling abortion drugs into Texas, as detailed above, is not the only way to get abortion drugs into Texas. Mailing the drugs into Texas is another method. The drugs do not have to be mailed from a foreign country. They could be mailed from other states. Unfortunately, a number of states have passed abortion shield laws that prohibit the “shielding” state from extraditing individuals to states where abortion is illegal and prohibit state officials from cooperating with an investigation of violations of other state’s abortion laws.36 Such laws also prohibit “shielding” state officials from cooperating in an investigation of an individual suspected of being involved in an abortion. The abortion drug pushers just need to put the drugs in an envelope and let the USPS or Federal Express do the work. While this presents very significant challenges to the interdiction of abortion drugs, it is not an unbeatable strategy. There is a federal law, the Comstock Act which prohibits using the United States mail to transport:

Every article or thing designed, adapted, or intended for producing abortion. . . and
Every article, instrument, substance, drug, medicine or thing which is advertised, or described in a manner calculated to lead another to use or apply it for producing abortion. . . 37

The Comstock Act also prohibits common carriers like Federal Express and UPS from transporting “any drug, medicine, article or thing designed, adapted, or intended for producing abortion. 38The application of the Comstock Act to the transportation of abortion drugs was an issue in the recent Supreme Court Case of FDA v. Alliance for Hippocratic Medicine, 602
U.S._ (2024). Unfortunately, since the case was decided on the issue of standing, the Court did not reach the merits issues. However, enforcement of the Comstock Act would make getting abortion drugs into Texas much more difficult. Like any other federal crime, it could be investigated by the FBI and other federal law enforcement bodies. Federal subpoenas could be enforced by the federal courts in the state where the drugs were put in the mail. Federal marshals could arrest those accused of violating the Comstock Act. This would make the shield laws largely ineffective. Further, those convicted of violating the Comstock Act could be sent to Texas for trial as to state crimes. Once on trial in Texas, the mother’s testimony would be key to convicting those who sent the abortion drugs into Texas under Texas’ abortion statutes.

Not Prosecuting Mothers Results in Fewer Abortions
Not prosecuting mothers for abortion results in fewer abortions. Recall the Abolitionists argument “that equal protection just means that laws that protect preschool children and other born persons from being murdered should also protect preborn children from the same thing.” If equal protection meant one size fits all and mothers could be prosecuted, unborn children would receive less protection, not more protection. While some mothers would be prosecuted under the Abolitionist bills, fewer kingpins would be prosecuted.

Does Equal Protection Demand No Distinctions?

On the first page of their website the Abolitionists have a graphic. It says:

It says:

EQUAL
PROTECTION
SIMPLY MEANS
THE SAME LAWS THAT
PROTECT THESE PEOPLE
(Arrow pointing to pictures of born people)
MUST ALSO PROTECT THESE PEOPLE

Arrow pointing to unborn people)39

The Abolitionists’ argument rests on the premise that laws cannot make meaningful distinctions between potential perpetrators. In fact, the same laws must be used to protect all people. If this is how equal protection works, one must conclude that since it is a crime to kill a born person, it is a crime to kill an unborn person and it does not matter what is the relationship between the killer and the born person. But that is not how equal protection works.

Suicide40
Suicide is a form of homicide or the killing of a human. But not only in Texas but in every state suicide is not a crime. The relationship between the killer and the killed makes a huge difference when the issue is suicide. This is not based on the premise that one can do whatever one wishes to one’s own body. In Texas, assisting suicide is a crime. It does not matter if the person being killed fully consented to and indeed requested help committing suicide. The reason behind not criminalizing suicide is the belief the one who wants to commit suicide is better helped by giving the person treatment, not jail. The life of the person who attempted suicide is better protected and suicide is better deterred by treating the person. The example of the law of suicide shows that a cookie cutter approach to the law, one size fits all, can be disregarded when there is reason to deviate from such an approach. In fact, equal protection jurisprudence recognizes that there are standards to be applied to determine when it is appropriate to depart from rigid equality. But if the Abolitionists believe that the laws concerning murder must apply with full force to a mother who gets an abortion, by their own logic, laws concerning murder must apply to a person who attempts suicide. If the relationship between the murdered and the murderer does not matter, the person attempting suicide should be charged with the crime of attempted murder. The Abolitionists, to be consistent, must support the criminalization of suicide.

Equal Protection Under the Law
In order for the courts to hold that equal protection applies in the way the Abolitionists contend equal protection works, there would have to two changes to the law: (1) the courts would have to rule the unborn are persons under the Fourteenth Amendment, and (2) the courts would have to change the standard by which exceptions to pure equality are allowed.


Unborn Children are Persons
In no abortion case from Roe to Dobbs has the Supreme Court ruled that unborn children are persons under the Fourteenth Amendment. The Abolitionists were not the first to make the argument that the Fourteenth Amendment protects the unborn. The Witherspoon article referenced herein makes that argument and was published in 1985. It cites Robert Byrn, “An American Tragedy: The Supreme Court on Abortion,” which made the argument the very year Roe was issued.41 Nor has this argument been forgotten by the mainstream pro-life movement. In the book Natural Rights & the Right to Choose, Hadley Arkes makes an impressive argument for the personhood of the unborn that focuses on the Declaration of Independence’s assertion of the self-evident truth that all men are created equal.42 Robert George and John Finnis filed a brief in Dobbs case that argues that the unborn are protected by the Fourteenth Amendment. The brief explores how the term “person” was used in American Law up to the adoption of the Fourteenth Amendment.43 This is not to say that all scholars, even all pro-life scholars, agree that the unborn child is a person under the Fourteenth Amendment.44 It should be noted that at the time of the adoption of the Fourteenth Amendment very little was known about human development and that was not generally known. We, with our modern science, know conception is the union of sperm and egg and with sonogram machines can watch our own children developing in utero. While not the best argument, one can argue that those who drafted and ratified the Fourteenth Amendment did not consider the unborn child a person from conception and, hence, the Fourteenth Amendment should not be interpreted as covering unborn children. Of course, the counter argument is that when the term “person” was used in the Fourteenth Amendment it meant a member of our species. The fact that we now have a better understanding of who is a member of our species should not be disregarded because of the rudimentary science at the time the Fourteenth Amendment was passed and adopted. But while the Abolitionists will find many who agree that the unborn child is a person for purposes of the Fourteenth Amendment, the Abolitionists appear to stand alone for the proposition that the Fourteenth Amendment requires that the mother who obtains an abortion must not be exempt from criminal statutes that make murder a crime.

Equal Protection Standard
The United States Supreme Court has set out the standard to be used in determining whether a law is in violation of the Equal Protection Clause of the Fourteenth Amendment:

The Equal Protection Clause commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” This provision creates no substantive rights. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1,33 (1973); id., at 59 (Stewart, J., concurring). Instead, it embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly. Plyler v. Doe, 457 U. S. 202, 216 (1982) (” ‘[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same’ “) (quoting Tigner v. Texas, 310 U. S. 141, 147 (1940)). If a legislative classification or distinction “neither burdens a funda- mental right nor targets a suspect class, we will uphold [it] so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U. S. 620, 631 (1996).45

The Equal Protection Clause, of itself, creates no rights. Unless a classification burdens a fundamental right or targets a suspect class, the courts must uphold the law if there is a rational basis for the law. As the Abolitionists have not and they cannot show how the laws in question burden a fundamental right or targets a suspect class, the question is do states have a rational basis to exempt mothers from laws criminalizing abortion. As this paper has shown, the rational basis for treating mothers differently than all others involved in abortion springs from the unique nature of abortion. The only two people who must know that the mother is pregnant are the mother and the person the mother reaches out to assist in the abortion. Abortion is particularly easy to conceal. Proving that a miscarriage did not occur is a difficult task. Abortion by its very nature is secretive. Further, by the very nature of pregnancy, a mother cannot be involved in very many abortions, but those who assist in abortions can be involved in thousands of abortions. It is a legitimate end for a state to want to limit the number of abortions as much as possible. There is a rational basis for laws that exempt mothers from prosecution for abortion.

One may contend that the argument presented herein is wrong: that not exempting mothers from prosecution will not decrease the number of abortions. But, even if one thinks that this assertion were true, it would not prove that states lack a rational basis to exempt mothers. On issues of public policy there are often different solutions presented. A state that selects an option that is not supported by everyone does not act without a rational basis for its action. One might argue that under general law prosecutors can on a case-by-case basis grant immunity and that should be sufficient here. Again, this does not show that states that exempt all mothers lack a rational basis. Under Fourteenth Amendment Equal Protection jurisprudence, state laws that exempt the mother from criminal prosecution do not violate the Constitution, there is a rational basis for such laws.


Consequences of Prosecuting Mothers
There would be serious consequences if abortion were considered the crime of murder and mothers were not exempted from prosecution. In Texas, murder is a capital felony if the victim is under ten years of age, which means that the punishments for conviction are life without parole and the death.46 In all cases, the victim of an abortion is under ten years of age. Hence, in all cases when an unborn child is intentionally killed by an abortion, the perpetrators have met the criteria for a capital felony and if convicted will be sentenced to life without parole or death. If the Texas Legislature were to pass an Abolitionists Equal Protection bill, the result is that a scared eighteen-year-old who knew that her parents and friends would be greatly disappointed and believed that her future would be ruined, could be charged with capital murder and, if convicted, could face the death penalty.

The Abolitionists seem a bit touchy about the death penalty that their bill would for the first time apply to mothers who get abortions. On their website, they have a whole list of myths about the Abolition bills and the death penalty.47 Myth Number One is: “Abolition bills require the death penalty for women who get abortions.” Not sure who is spreading this myth. As the website points out no one gets the death penalty unless one is charged with capital murder, one is convicted by a jury, and the jury or judge selects the punishment of death instead of life without parole. Nothing unique here about abortion. No one receives a criminal sentence unless one is charged, convicted, and a particular penalty is assessed. The website throws in several other truisms that equally apply to every criminal case. Under the Abolitionist bill, not every woman who gets an abortion will get the death penalty, just like under current Texas law every mass murderer will not get the death penalty. But the Abolitionists are the only ones who have proposed legislation that allows mothers who get abortions to be convicted of capital murder. The Abolitionists are responsible for the results of their actions. If their bill passes, they are responsible for making abortion a capital crime for mothers.

As was noted above, there are only three published decisions of mothers ever being prosecuted for abortion prior to Roe v. Wade. Neither prosecution was successful. Even if one does not believe that exempting mothers who get abortions from prosecution leads to fewer abortions, perhaps one should consider the political consequences of one’s actions. The news media is already using the Abolitionists position as a successful way to attack the gains that have been made by the prolife movement.48 With six recent wins in a row prior to the November 2024 elections, the pro-abortion side has put abortion into six constitutions and sought even more wins in November 2024 elections. While the pro-life side had a few victories this past November, we lost more than we won. Perhaps right now is not the time to present to the American public for the first time the claim that mothers who get abortions should be tried for murder.

Consequences to Pregnancy Help Centers
Pregnancy Help Centers have long been among the most effective methods to stop abortions. Providing compassion listening and guidance along with medical care, and assistance with housing, food, clothing, and baby essentials like diapers and cribs, Pregnancy Help Centers, are on the front lines in changing hearts and minds. They provide compassionate alternatives to mothers who do not know what to do and may be inclined to seek abortion. They confront head on the lies of the abortion industry that killing your child is the ticket to education and success. But what mother who is considering abortion would enter the door of a Pregnancy Help Center knowing that if she eventually gets an abortion, she could be charged with capital murder. Better to keep the pregnancy and her thoughts about abortion secret than to take a chance that visiting a Pregnancy Help Center could be used against her in a criminal trial. Making mothers subject to criminal penalties up to and including the death penalty will greatly decrease the effectiveness of Pregnancy Help Centers. This will result in more abortions, not fewer abortions. Because pregnancy is so easy to conceal during the early stages of pregnancy, it is vital to encourage mothers to visit Pregnancy Help Centers. Pregnancy Help Centers have often been the reason mothers chose life over abortion. This will not be the case if the Abolitionist have their way.

Conclusion

The Abolitionists are wrong that the Equal Protection Clause of the Fourteenth Amendment mandates that laws that prohibit murder must not exempt from prosecution mothers who obtain abortions. The exemption for mothers actually protects the unborn child. It makes it more likely that the kingpins who can perform hundreds or thousands of abortions or who deliver hundreds of thousands of abortion pills will be put in jail. Abortion is a unique crime. From the early days of common law until the present, abortion is a hard crime to prosecute because of the very nature of abortion. It is very easy to conceal an abortion. The mother’s testimony will be necessary in almost all cases to convict the abortionist or the drug dealer. Because equal protection jurisprudence allows legislatures to recognize real world differences, it allows legislatures to make distinctions where there is a rational basis. Protecting the unborn by making it easier to convict abortionists and abortion drug dealers is the rational basis for allowing legislatures to exempt mothers. Such laws are constitutional precisely because they protect the unborn.

  1. Christopher Maska, The Practical Case for Opposing Laws That Would Make the Mother of the Child Criminally Responsible for Abortion, Society of St Sebastian, Journal of Bioethics in Law &
    Culture,Quarterly 5 issue 4     ( Fall 2022). https;//www.societyofstsebastion.org/fall2022-bioethics-lawl-culture ↩︎
  2. “Who We Are.” Abolish Abortion Texas, accessed October 18, 2024. Abolishabotiontx.org/our-history/ ↩︎
  3. Forrest Wilder, Inside the Push to Make Abortion a Criminal Offense, Texas Monthly, October 2024 and on website as Extremists Want to Make Abortion Punishable by Death-And They are Gaining Power in Texas. http:/www.texasmonthly.com/news-politics/abortion-Abolitionists-entering-texas-legislature. ↩︎
  4. Abortion Bills What About the Death Penalty. Abolish Abortion Texas, accessed October 18, 2024. https://abolishabortiontx.org/what-about-the-death-penalty/ ↩︎
  5. Vernon’s Texas Civil Statutes Art. 4512.1. The Texas State Library and Archives has a useful if incomplete history of Texas’ pro-life laws. http://guides.sil.texas.gov. ↩︎
  6. Texas Health and Safety Code section 171.203. ↩︎
  7. Texas Health and Safety Code section 171.204 provides the general prohibition. Texas Health and Safety Code section 171.205 provides the exception for medical emergencies. ↩︎
  8. Texas Health and Safety Code section 171.208. ↩︎
  9. Texas Health and Safety Code section 171.206(b). ↩︎
  10. Whole Woman’s Health v. Jackson, 142 S.Ct. 522, (2021). ↩︎
  11. See 2020 and 2021 Selected Characteristics of Induced Terminations of Pregnancy, ITOP Statistics, Texas Health and Human Services. https://www.hhs.texas.gov/about/records-statistics/data-statistics/itop-statistics ↩︎
  12. Texas Health and Safety Code chapter 170A.001, Section 3. ↩︎
  13. Texas Health and Safety Code sections 170A.001 and 170A.002. ↩︎
  14. See Selected Characteristics of Induced Terminations of Pregnancy for 222, 2023, and 2024, ITOP Statistics, Texas Health and Human Services Commission. https://www.hhs.texas.gov/about/records-statistics/data-statistics/itop-statistics ↩︎
  15. Texas Health and Safety Code section 170A.004. Texas Penal Code section 12.32
    16 Texas Health and Safety Code chapter 170A.003(b). ↩︎
  16. Texas Health and Safety Code chapter 170A.003(b). ↩︎
  17. In re State, 682 S.W.3d 890 (Tex. 2023) and State v. Zurawski, 690 S.W.3d 644 (Tex. 2024). ↩︎
  18. Abortion is Still Legal in Texas . . . Even in 2023. Abolish Abortion Texas, accessed October 18, 2024 .https://abolishabortiontx.org/abortion-is-still-legal-in-texas-even-in-2023/ ↩︎
  19. Why Equal Protection. Abolish Abortion Texas. / https://abolishabortiontx.org/why-equal-protection/ ↩︎
  20. Roe v. Wade, 410 U.S. 113, 157-58 n. 54 (1973). ↩︎
  21. James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment., 17 ST. MARY’S L.J. 29, 31 (1985). Available at
    https://commons.stmarytx.edu/thestmaryslawjournal/vol17/iss1/3 ↩︎
  22. Id. ↩︎
  23. Id. at 33. ↩︎
  24. Wheeler v. State, 263 S2d 232 (Fla. 1972) (citing State v. Barquet, 262 So.2d 431 (Fla. 1972). Commonwealth v. Weible, 45 Pa. Supp. 207 (1911) and Crissman v. State, 93 Tex Crim. 15, 245
    S.W.438 (Tex. Crim. App. 1922). For a full treatment of the issue of how women have been prosecuted for abortion and related crimes, See Paul Benjamin Linton, Prosecuting Women for Abortion: A Reality Check, 37 REGENT U. L. Rev. Issue 2 (forthcoming 2025). The prosecution of mothers for abortion or related crimes has been exceedingly rare in the United States. ↩︎
  25. Witherspoon at 58-59. ↩︎
  26. Id. at 59. (footnotes omitted). ↩︎
  27. This section up to the section “Does Equal Protection Demand No Distinctions?” draws heavily from Christopher Maska, The Practical Case for Opposing Laws That Would Make the Mother of the Child Criminally Responsible for Abortion. Society of St Sebastian, Journal of Bioethics in Law &
    Culture,Quarterly 5 issue 4     ( Fall 2022). https;//www.societyofstsebastion.org/fall2022-bioethics-lawl-culture ↩︎
  28. The infamous late-term abortionist Dr. Kermit Gosnell was responsible for over 16,000 abortions. Neal Razell, Kermit Gosnell: Philadelpia’s abortion “monster” revives US debate, BBC News June 27, 2013. bbc.com/news/magazine-23004693. Dr. Bernard Nathanson was responsible for over 60,000 abortions. ↩︎
  29. Tex. Code of Crim. Pro art. 38.14, Zamora v. State, 411 S.W.3d 504,509 (Tex. Crim. App. 2013). ↩︎
  30. State v. Barnett, 437 P2d 821 (1968). ↩︎
  31. Roe v. Wade, 410 U.S. 113 (1973). ↩︎
  32. 34 ALR 3d 1970, Jonathan M. Purver. “Woman Upon Whom Abortion is Committed or Attempted as Accomplice for Purposes of Rule Requiring Corroboration of Accomplice Testimony,” ↩︎
  33. Id. at 860. ↩︎
  34. One obvious difference is that there is a much more limited market for abortion drugs than for recreational drugs. The market for abortion drugs is limited to the number of pregnant mothers who wish to kill their children. Recreational drugs are targeted to a much larger segment of society and are more frequently used. ↩︎
  35. Stephania Taladrid, “The Post-Roe Abortion Underground, A multigenerational network of activists is getting abortion pills across Mexico to Americans,” The New Yorker, October 10,
    2022.http://www.newyorker.com/magazine/2022/10/17/the-post-roe-abortion-underground ↩︎
  36. David S. Cohen, Greer Donley, and Rachel Rebouche, “Abortion Shield Laws,” 2 NEJM Evid. 4 (2023). https://evidence.nejm.org/doi/full/10.1056/EVIDra2200280. ↩︎
  37. 18 U.S. Code sec. 1461. ↩︎
  38. 18 U.S. Code sec. 1462. ↩︎
  39. Abolish Abortion Texas, accessed October 18, 2024 https://abolishabortiontx.org/ ↩︎
  40. I am indebted to Paul Benjamin Linton for the argument that the way states treat suicide shows all killings do not have to be covered by the same laws. ↩︎
  41. Robert Byrn, “An American Tragedy: The Supreme Court on Abortion,” 41 FORDHAM L. REV. 41:4 807, 815-27 (May 1973). ↩︎
  42. Hadley Arkes, Natural Rights & the Right to Choose (Cambridge University Press 2004). ↩︎
  43. Brief of Amicus Curiae Scholars of Jurisprudence, John M. Finnis and Robert P. George in Support of Petitioners. Dobbs v. Jackson, U.S. Supreme Court docket #19-1392, July 29, 2021.
    https://robertpgeorge.com/articles/brief-of-john-finnis-and-robert-george-in-the-dobbs-case/ ↩︎
  44. See Clarke D. Forsythe, “The Fourteenth’s Amendment’s Personhood Mistake,” National Review, February 2024. https://www.nationalreview.com/magazine/2024/02/the-14th-amendments-personhood-myth/. Forsythe is the former General Counsel for Americans United for Life and the veteran of many court battles seeking to protect the unborn. ↩︎
  45. Vacco v. Quill, 521 U.S. 793, 799 (1997). ↩︎
  46. Tex. Penal Code secs. 12.31 and 19.03(a)(8). ↩︎
  47. “Abortion Bills What About the Death Penalty?” Abolish Abortion Texas, accessed October 18, 2024 https://abolishabortiontx.org/what-about-the-death-penalty/ ↩︎
  48. See footnote 3. ↩︎

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