I want to talk about pro-life laws, but first I want to talk about a high school friend. I won’t share her name—we’ll call her Denise.
When I was in high school, abortion rates were close to their all-time highs, with rates more than double what they are today. While the practice obviously wasn’t universal when a classmate got pregnant, it was often expected. In fact, there were times when the expectation bordered on an outright demand.
Denise was (and is!) extremely smart, extremely capable, and was obviously going places. Her senior year, she got pregnant, and—quite frankly—everyone panicked. She was allegedly ruining her future, ruining her reputation, and bringing a child into the world with a teen father who no one thought could be a responsible dad.
The “solution” was obvious. Abort the child. The pressure on her was intense. It came from friends, from family, and even from parents. And—here’s the crucial part—no one, not one single person, who demanded that she abort her baby argued to her that abortion was killing a human being. That it was “worth it” for her child to die.
Instead, at this very early stage of the pregnancy, they did not believe her child was “alive” in any meaningful sense. It was a potential life, yes, but only potential. To them, the only life at issue belonged to Denise. So they pressed her and pressured her, not because they despised the child in the womb but because they were concerned about a young pregnant girl whose future seemed to be at stake.
Denise didn’t know what to think. She wasn’t sure where she stood on the question of when a baby becomes a person, but her moral instincts were telling her not to abort. She couldn’t explain it by reference to the facts of fetal development. Instead, a voice inside her said, this is wrong.
So Denise resisted the pressure. She kept the baby, and by the time of the birth, everyone’s hearts had changed. They welcomed the child with genuine joy.
Across the United States, then and now, countless women face similar situations. They face similar pressures, with similar levels of knowledge and understanding. An increasing percentage of women who face Denise’s choice now choose life (it’s one reason why abortion rates are down), but many women still abort.
Now, here’s my question. If a woman chooses to abort, should she be prosecuted for murder? Should her decision be criminalized? Is any legal regime that doesn’t criminalize women who obtain an abortion fundamentally unjust? Should she be forced to carry a pregnancy even if doing so endangers her life? If you answer “yes” to any of those questions, then you’re an abortion “abolitionist,” and you’re sadly misguided.
If you don’t follow the pro-life movement closely, you might be puzzled by the term “abolitionist.” After all, isn’t every single member of the pro-life movement who wants to end abortion an “abolitionist”? I believe that a just society protects unborn life in law and a healthy society celebrates and protects innocent life from conception until natural death. Doesn’t that make me an abolitionist?
Not in the vernacular of today’s pro-life movement. Why? Because I believe abortion laws should protect the life of the mother, I do not believe women who obtain abortions should face criminal punishment, and I do strongly endorse state statutes that make even incremental improvements to abortion law. And if the draft Justice Alito opinion holds, the distinction between so-called “abolitionists” and incrementalists/eliminationists like me is about to become very relevant indeed.
Incrementalists aren’t in favor of slow change in abortion laws for the sake of slow change, but rather accept attainable change even when you ultimately hope for greater regulation. And the desire to “eliminate” abortion implicitly acknowledges the reality that bans alone won’t end abortion. Abortion can only truly end when American culture changes, not just its law.
It is no exaggeration to say that the Southern Baptist Convention is the most influential single institution in American Evangelicalism. It’s by far the largest Protestant denomination in the United States, and it punches above even that considerable weight in its intellectual influence. It maintains a robust network of seminaries that exercise a disproportionate amount of influence on Christian social and political thought.
So it was particularly noteworthy when one of the two leading candidates for the presidency of the SBC, a pastor named Tom Ascol, launched a direct attack on the SBC’s own Ethics and Religious Liberty Commission and my friend, acting president Brent Leatherwood, calling it a “rogue entity” for opposing laws that would criminalize mothers seeking abortions:
As background, the ERLC rightly joined an open letter to state lawmakers signed by the nation’s leading pro-life organizations, including Americans United for Life, National Right to Life, and the Susan B. Anthony List. Its message was clear:
As national and state pro-life organizations, representing tens of millions of pro-life men, women, and children across the country, let us be clear: We state unequivocally that we do not support any measure seeking to criminalize or punish women and we stand firmly opposed to include such penalties in legislation.
Moreover, the need was urgent. Louisiana lawmakers were debating a law that would have permitted prosecution of mothers who obtained an abortion and had passed out of committee by a 7-2 vote. After the letter, the bill’s sponsor removed it from the House calendar, effectively killing the legislation, at least for now.
At this point, two things are true. The mainstream pro-life movement is and has been resolutely opposed to criminalizing mothers who obtain abortions. At the same time, there is a growing movement—the “abolitionist” movement that strongly objects to the mainstream position. Abortion is murder, they say, and murderers should be punished. Again, here’s Tom Ascol:
In fact, the abolitionist movement was strong enough to pass an anti-abortion resolution at last year’s Southern Baptist Convention that was so strident that a number of the convention’s most-prominent pro-life advocates voted against it.
The resolution, as written, says “the murder of preborn children is a crime against humanity that must be punished equally under the law,” characterized an incremental legal approach to banning abortion as appalling, and advocated ending abortion without an exception for saving the life of the mother. Here’s the key language rejecting incrementalism (though a separate provision was modified to reject “incrementalism alone”):
WHEREAS, over the past 48 years with 60+ million abortions, traditional Pro-life laws, though well intended, have not established equal protection and justice for the preborn, but on the contrary, appallingly have established incremental, regulatory guidelines for when, where, why, and how to obtain legal abortion of innocent preborn children, thereby legally sanctioning abortion. (Emphasis added.)
And here’s the key language regarding exceptions to abortion bans:
WHEREAS, since 1980, the SBC has passed many resolutions reaffirming the importance of human life at all stages of development, but we have yet to call for the immediate abolition of abortion without exception or compromise…
RESOLVED, that the messengers of the SBC meeting in Nashville, Tennessee, June 15-16, 2021, do state unequivocally that abortion is murder, and we reject any position that allows for any exceptions to the legal protection of our preborn neighbors, compromises God’s holy standard of justice, or promotes any God-hating partiality. (Emphasis added.)
This language represented a sharp departure from previous Southern Baptist resolutions, which had repeatedly and explicitly called for the pro-life movement to protect the life of the mother. To make this practical, the logic of the abolitionist movement would lead to criminalizing a woman who aborts an ectopic pregnancy, cruelly putting her in the position of choosing between prison and death.
How is this position pro-life? How is it even remotely just? The closest analogue would be state conscription to commit suicide. When two lives cannot be saved, it is objectively pro-life to save one.
Moreover, the turn from incrementalism is troubling. What is a pro-life legislator to do when offered a legal option that is more just than abortion on demand but less just than much sharper restrictions? Join with pro-choice politicians in voting against the better statute?
As Denny Burk points out, the very statute at issue in Dobbs—the case that just might strike down Roe—represented an incrementalist approach. It only bans abortion after 15 weeks, leaving the vast majority of abortions lawful.
It is true that excessive incrementalism can be imprudent. I’ve written in favor of passing heartbeat bills, for example, precisely because it was necessary to pass laws that were inconsistent with Roe to challenge Roe. It was time to end the incrementalist approach to challenging Roe. The law in Dobbs itself represented a bold version of incrementalism because even though it didn’t ban most abortions, it still plainly contradicted precedent.
But if I’m sitting in a purple state legislature, and my realistic choice is between passing, say, a 20-week abortion ban and no meaningful regulation at all, I’m voting for the 20-week ban. In those circumstances, legislative incrementalism isn’t a surrender. It’s an act of practical wisdom that recognizes that some advance is better than no advance at all.
And what are we to make of the argument that abortion should be treated as murder not just as a matter of heated rhetoric but as a matter of law? After all, if you believe that abortion kills a human being, isn’t it inconsistent and perhaps even unjust to not to provide “equal protection” for that young life by holding out the promise of criminal sanction for a mother who seeks to abort her child?
Yet this argument misunderstands the vitally important legal and moral distinction between act and intent. I like the way Francis Beckwith put it in his book, Defending Life (hat tip to Burk for the reference):
If abortion is made illegal… [those crafting laws and penalties] will have to take into consideration the following facts. (1) Unborn human beings are full-fledged members of the human community and to kill them with no justification is unjustified homicide. (2) Because of a general lack of understanding of the true nature of the unborn child – likely due to decades of cultural saturation by abortion-choice rhetoric and little serious philosophical reflection on the pro-life position by the general public – most citizens who procure abortions do so out of well-meaning ignorance. (3) The woman who will seek and obtain an illegal abortion is really a second victim. Women who seek illegal abortion will probably do so out of desperation. Not realizing at the time of the abortion that the procedure kills a real human being, some of these women suffer from depression and guilt feelings after finding out the true nature of the unborn.
To make this basic, it’s necessary to draw a distinction between “homicide” and “murder.” Homicide is quite simply “when one human being causes the death of another.” Homicide is not always unlawful. Sometimes it’s even justifiable (such as when you kill a person in self-defense).
Punishment for homicide depends a great deal on state of mind. For example, there is a dramatic difference in the law between negligence—which typically leads to a manslaughter charge—and outright murder, which is usually defined as the intentionally unlawful killing of an other person.
There is even an allowance in the law for tragic errors. Case law is replete with examples of exonerating police officers and citizens of the criminal consequences of reasonable, mistaken beliefs that the person they killed presented a direct and immediate threat of death or grievous bodily harm.
In the absence of criminal intent (which can include a depraved indifference to human life), American law and moral tradition deems a murder charge to be fundamentally unjust.
Abortion abolitionists stand against this tradition. The decision to prosecute women who obtain abortions could result in the prosecution of thousands upon thousands of young women who genuinely do not believe they are killing a child. This is a material distinction from the murder and manslaughter charges we see in criminal law today. There is zero meaningful dispute about the personhood of, say, a drunk driving victim or the victims of a mass shooting.
Moreover, many women who seek abortions are also under extreme emotional distress, facing intense pressure—like my friend Denise—from friends and family to “end a pregnancy,” not “kill a baby.” As Beckwith notes, they’re not malicious or even reckless. They’re “well-meaning” even if they are terribly, tragically wrong.
There may be some women, at the fringes, who believe “my abortion is the same as killing a two-year-old, and I just don’t care,” but that is absolutely not the daily reality of abortion in America. Not only is there no intent to kill, there is no real awareness of what abortion truly does.
So if you recognize the child as a human life, yet you also recognize the mother’s lack of knowledge and intent, what’s the just approach? It’s to target the procedure itself, place legal penalties on the practitioners of the procedure, and to exhibit compassion and support for mothers and their babies.
That’s why the great challenge of a pro-life movement post-Roe isn’t principally legal. It’s still moral and cultural. In the absence of abundant education, love, support, and compassion for mothers and their babies, the culture will not only demand that abortion remain legal and available, mothers will desperately (and dangerously) seek abortions even when they’re banned.
Remember, abortion used to be more common even when it was mostly illegal. Thus it’s vital that any additional regulation of abortion be accompanied by an expansion of political and cultural support for young families. In fact, there should be an expansion of political and cultural support for young families even if aboriton law remains unchanged. It’s a concrete way to be pro-life no matter the state you live or the president in power.
I’ve spoken loudly and frequently, for example, in support of Mitt Romney’s child allowance plan. Last year he proposed transforming the child tax credit into a child tax allowance that could transform the financial condition of many of America’s poorest families. Under the Romney proposal, families would receive $4,200 per year, per child (up to age six) and $3,000 per year, per child (between ages 6 and 17). Families would receive monthly payments, and the payments would begin four months prior to the child’s due date.
We know that financial pressure plays a role in abortion decisions. We also know that Romney’s plan would dramatically ease child poverty. Isn’t that a far better and more just use of the state’s resources than pursuing and prosecuting desperate, grieving young moms?
Tom Ascol will likely lose his race for the SBC presidency. The Louisiana bill was withdrawn. The mainstream of the pro-life movement rejects “abolitionist” extremism, but minority positions can still do immense harm. And the SBC’s most recent abolitionist resolution illustrates that the Overton Window may be shifting in the wrong direction on the right. Compounding the problem, many red state legislatures are in a punitive mood, and I fear the Louisiana bill represents the start of a larger and longer internal struggle for the heart and soul of the pro-life movement.
I confess that I think of my friend Denise all the time. What are the things a pro-life movement can do to transform our culture and our nation so that other young women like her don’t face the fear and pressure that she endured?
We can educate young moms, their friends, and their families about the reality of life in the womb. We can provide financial assistance so that even the poorest mother knows she can support her child. We can continue to destigmatize unwed parenting so that mothers know that every child is a blessing, regardless of the circumstances of their birth. We can foster and adopt when even our best efforts to protect families fail. We can enact just laws that value life and close the clinics that exact such a terrible toll.
Here is what it must not do. It must not imprison mothers. It must not order them to face death for the sake of pregnancies that will fail. Even if Americans are uncomfortable with abortion, our nation will never agree to protect unborn children by punishing their mothers, and an “abolitionist” movement that tells them they must is an abolitionist movement that’s doomed to fail.
One more thing …
In the latest Good Faith podcast, Curtis and I take on the tough question of childhood anxiety. We talk to Kara Powell from the Fuller Youth Institute, and her words are both sobering and encouraging. We have a real problem, and there is real cause for hope. Give it a listen and let us know your thoughts.
One last thing …
There’s new music from my favorite Australian reformed singer/songwriter, Tenielle Neda. As one YouTube commenter said, this song is beautiful, simple, and true. Enjoy: