There is no reliable evidence that prosecuting women would lead to the elimination of abortion.
P roposals to prosecute women for abortion are a fringe notion that is rejected by the law in virtually every state. A West Virginia statute is typical: “This section shall not be construed to subject any pregnant female upon whom an abortion is performed or induced, or attempted to be performed or induced, to a criminal penalty for any violation of this section as a principal, accessory, accomplice, conspirator, or aider and abettor.” (W. Va. Code Ann. Sec. 61-2-8(c)).
Nevertheless, legislative bills have been introduced in several states in recent years to penalize women for abortions. Last spring, Stateline cited eight states in which bills were introduced in 2025 to prosecute women for abortion.
There are numerous reasons why most national pro-life organizations and leaders disavow criminal penalties against women for abortion. One major reason is the recognition that a woman’s culpability in seeking abortion is, at best, contestable, and is frequently clouded by complex factors.
In criminal law, culpability refers to an individual’s legal responsibility for a criminal act or blameworthiness, taking into account their mental state. Casual claims that women who abort are committing “murder” fail to deal with the psychological and sociological context that surrounds many women’s decisions.
The prevalence of coerced abortion is ignored or denied despite its long history. Ernest Hemingway’s 1927 short story, Hills Like White Elephants, showed how subtle male coercion can be. Even the renowned “pro-choice” ethicist Daniel Callahan admitted this. As he wrote in 1990 for Commonweal, “If legal abortion has given women more choice, it has also given men more choice as well. They now have a potent new weapon in the old business of manipulating and abandoning women.”
Yet over 50 years of marketing has misled many that the decision to undergo an abortion is purely autonomous. This conceals the profoundly coercive factors that influence it.
The modern prevalence of abusers and traffickers coercing women into abortion is well documented. Spousal and domestic abuse are defined broadly in the law today; coerced abortion is a species of domestic abuse.
In addition, there is an appalling lack of informed consent for abortion in America. Few women know about the unique risks of mifepristone and misoprostol, the two drugs in a chemical abortion. This problem was highlighted in a congressional hearing on September 4, when Secretary of Health and Human Services Robert F. Kennedy Jr. testified, regarding the risks of chemical abortion (mifepristone), that “we know that during the Biden administration they actually twisted the data to bury one of the safety signals.”
Mifepristone is an anti-progestin, which acts against progesterone, present in many organs of a woman’s body. Mifepristone is also an anti-glucocorticosteroid. This means it blocks the glucocorticoid receptor, suppressing a woman’s immune system.
An analysis of insurance data published in recent months by the Ethics and Public Policy Center (EPPC), from 865,727 prescribed chemical abortions between 2017 and 2023, found that 94,605 women suffered serious adverse events from the procedure. That is, among that group, more than one out of ten women taking mifepristone experienced sepsis, infection, hemorrhage, or another serious adverse event within 45 days of taking the drug. That’s 22 times greater than the rate reported by the FDA.
Nor is there sufficient understanding of the dozens of international medical studies that have found an increased risk of pre-term birth (and other increased risks) after surgical abortion.
Whatever the degree of responsibility for any particular abortion decision, the criminal law should not be used to penalize women.
This is not a new question. It has been debated for more than a century, and the result of that long debate is clear. Virtually all 50 states today have a clear legal policy against prosecuting women, due to judicial decisions or legislation or both. In the face of that unanimity, it makes no sense to attempt to counter it today, especially when there is no public support for prosecution.
There is no reliable evidence that prosecuting women would lead to the elimination of abortion, and there’s no reason to think that starting now would make a difference. There would be no simple causal relationship. The lack of public support would touch off surrounding cultural and political consequences that no one could confidently predict.
The negative effect of prosecuting women on effective enforcement of abortion laws was clear by the 1930s and 1940s. And even if such bills get shot down quickly in legislatures, the mere idea gets boosted by eager media, which tar and feather effective pro-life policies aimed at reducing elective abortion.
Every prosecution of a woman would require a probing, detailed examination of her mens rea, her state of mind. The unique complexity of these factors is why advocates of prosecution should leave the judgment to God.
If the cause for life in America supported prosecution, it would almost certainly affect negatively the work of pregnancy resource centers (PRCs) and divide the movement. PRCs would almost certainly be seen as centers for the collection of evidence against women who decided to abort.
At the same time, numerous post-abortive women have given voice to their abortion experience. Some are now public speakers or organizational leaders. Prosecuting women would obviously discourage any woman from “testifying” to her abortion. Not only would she feel censure from a practice of prosecution; she might expose herself to indictment.
The cause for life needs to be on the side of women, and their flourishing, because of the negative effect of elective abortion. And it cannot be on the side of women by promoting the prosecution of women for abortion. Advocates of prosecution need to decide whether they want to punish women or reduce elective abortion.