Legal Culpability: Questioning the Pragmatic Opposition to the Criminalization of all Parties Guilty of Abortion

The messengers of the SBC meeting in Nashville, Tennessee, June 15-16, 2021 stated “unequivocally that abortion is murder, and that 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.” We also affirmed that “the murder of preborn children is a crime against humanity that must be punished equally under the law.” Last week, however, the National Right to Life (NRL) published an open letter to our nation’s state legislators in which the claim was made that aborting mothers are victims and as such should never face criminal charges for aborting their offspring. Among the signatories of this letter was our acting ERLC President, Brent Leatherwood. 

Post abortive women suffer, therefore they are victims?

In support of the victimhood claim, studies were referenced showing that women who underwent abortions experienced higher psychiatric admissions in the first 90 days following pregnancy than women who gave birth and also had 17% higher mental health claims over the following four years. Additionally, women who have had abortions often feel guilty and regret their abortions.

Granting that these studies likely reflect the truth, do these statistics make aborting women victims of abortion as the NRL letter claims?

It would be interesting to know if drunk drivers who were involved in causing fatal car crashes were also more likely to have significantly higher mental health problems than those who choose not to drink and drive. Our guess is, yes, they likely struggle to similar degrees. Surely they too feel guilt and regret. Does this make drunk drivers victims of their own carelessness? Of course not. The victims of drunk drivers’ carelessness are those who lost their lives. Similarly, the victims of abortion are not the mothers signing the release forms and positioning their bodies to assist the abortionist. Rather, the victim of abortion is always the dead baby. 

Bible-believing Christians should not be surprised by the fact that sinners reap what they sow (Gal. 6:7). Psychiatric and mental health studies only confirm the fact that “the way of the treacherous is hard” (Prov. 13:15). Studies may indeed determine a probable link between mental and psychological struggles and abortion, but it is a biblical worldview that informs us of the cause of such problems. Romans 2:15 tells us that “the work of the law is written on their hearts, while their conscience also bears witness, and their conflicting thoughts accuse or even excuse them.” As the Protestant Reformer Martin Luther reportedly said, “to go against conscience is neither right nor safe” and we should not be surprised when those who do so experience inner turmoil. Guilt before God is a heavy load to bear (Psalm 38:4). 

And even if we were to grant that an abortive mother is always a victim, does it naturally follow that she be exempt from facing criminal charges? Even if one grants the claim that the drunk driver is a victim of a disease called alcoholism, in order to protect vulnerable citizens, the law rightly remains very strict and unyielding. To maintain a different standard of justice, denying the same kinds of legal protections for the most vulnerable child in the womb is to “justify the wicked” and allow for the condemnation of the innocent which “are both alike an abomination to the Lord” (Prov. 17:15).

Of course the analogy breaks down because most drunk drivers did not intentionally seek to end the life of a human being which is why it is most often treated as a 2nd degree felony, whereas a mother deliberately seeking to end the life of her child can only consistently be called murder. This being the case, equal protection for all humans would require an even greater charge regardless of the feelings of guilt and regret she may later feel. 

Because some aborting women are more culpable then others, all women should get away with murder?

On that note, one of our most outspoken critics, Denny Burk, has added his voice to the criminalization debate. His recent blog post quoted both Scott Klusendorf and Francis Beckwith to make a point that is rather obvious; namely, that there are different degrees of culpability for women who kill their preborn children. The abolitionists agree with this of course, but are quick to point out that if abortion is taken out of the healthcare laws and into the homicide code, there are already plenty of regulations on the books instructing our judicial branch as to how they are to decide, taking varying degrees of culpability into account. So, while this is a true point to make, the conclusion does not follow that mothers should never be prosecuted for aborting her baby. In fact, if you truly want mothers to understand their moral culpability in abortions, the most effective way to do that is to recognize the role of the law to teach (Gal. 3:24), and criminalize abortion for all parties involved. Incremental, prolife laws repeatedly fail at this very point by lying to the consciences of women. Just ask an abolitionist on the sidewalk if they’ve ever heard an aborting mom say, “It’s okay. There’s no heartbeat yet,” or quote some other imaginary prolife standard. And do not the Scriptures teach legal accountability regardless of circumstances? ”People do not despise a thief if he steals to satisfy his appetite when he is hungry, but if he is caught, he will pay sevenfold; he will give all the goods of his house” (Prov. 6:30-31). Was not Eve cursed even though she was deceived? 

Because some murder convictions will be more difficult, no aborting moms should receive any convictions?

Burk’s second point is equally as unconvincing, pointing out that the attempt to prosecute the mother may make it even more difficult to prosecute the abortionist. The saddest part about this argument is that it disregards the fact that criminalizing abortion for all parties involved will save thousands of mothers from a lifetime of guilt, shame, and regret. Additionally, it overlooks the fact that it is the District Attorney, not the legislators, who make decisions regarding which conviction is most important to pursue. People in gangs are often given immunity in order to testify against other members of their gang. If a woman pays someone to kill her husband, is only the hitman able to be prosecuted? Additionally, Burk’s reference to the circumstances that gave us Roe are not as applicable today as he would have us believe. Technology is much more widely available today and may easily be used as corroborating evidence. Further, increasingly more babies are being flushed down the toilet at home through self-managed chemical (pill) abortions today entirely removing an abortionist from the equation. Should these women be immune from prosecution? Finally, a difficulty in prosecution does not mean murder should remain legal. As Bradley Pierce once pointed out, “It’s harder to prosecute the murder of a 90 year old woman who is in failing health.” It is difficult to prove that she didn’t die of natural causes. “But that doesn’t mean we write laws that say the murder of 90 year olds in failing health is not a crime. We don’t do that. We write laws that are just and then we do our best to enforce them given the limitations of our own humanity.” Burk’s argument simply does not hold water when the lives of the preborn are valued as equally as all other humans.

If Burk truly does have a good argument against criminalizing abortion for all parties involved, he must have decided to save it for another day. 

We have a radical idea. What if we start with the premise that God tells us what is just in His Word and then reason from there? If we truly believe God requires just punishment for murder (Gen. 9:6), we must stop having these pragmatic discussions that lead us to any other conclusion. 

Abolitionists should be like prolifers and save any and all babies at all costs (nevermind that prolifers kill bills to abolish abortion)?

Burk again posted against the abolitionist position by saying:

“To use a football analogy, pro-lifers would love to have a 100-yard touchdown run. But if that isn’t possible, then pro-lifers are eager and willing to take 5-10 yard runs in a sustained drive down the field toward the same end. Abolitionists only accept 100-yard touchdown runs. Anything short a 100-yard touchdown run should be condemned and repudiated as a grave compromise with evil. That’s the difference between the pro-life movement and so-called Abolitionism. It’s not about the final goal of abolishing abortion but about how to get there. Pro-lifers will take whatever ground they can get. Abolitionists are all-or-nothing.”

His “100-yard touchdown run” mischaracterization of the abolitionist position refers to the false idea that abolitionists only support complete abolition–nothing else. In short, what abolitionists actually oppose is any efforts that compromise God’s holy standard of justice, or promote any God-hating partiality. In fact, there are many actions we should take on the road to abolition that do not fall into these unrighteous categories. Perhaps we will write more about that another day. Notice Burk states that “Pro-lifers will take whatever ground they can get,” while ignoring the current circumstances surrounding this debate. Faithful, courageous Southern Baptist pastors rallied support for an abolitionist bill in Louisiana last week. After six years of running abolitionist bills in various states, a bill to abolish abortion without exception or compromise had been voted favourable out of committee and was ready for a vote on the Louisiana house floor. And why was the bill killed? What kept abortion legal in Louisiana? The Roman Catholic NRL open letter that our acting ERLC president signed, pulling the rug out from under the Louisiana Baptist’s labors. So much for taking whatever ground we can get. All because of the argument that doesn’t hold water biblically: a woman seeking an abortion should never be prosecuted for murder.

The Scriptures speak clearly to this in Proverbs 17:15: “He who justifies the wicked, and he who condemns the righteous, both of them alike are an abomination to the Lord.” The shameful reality is that our Southern Baptist leaders are following the wisdom of men instead of the wisdom of God. 

Because some pregnancies require hospitalization and careful monitoring and may result in the death of the child, we should not criminalize moms who murder their babies?

But that’s not all. As if these objections weren’t enough, we have yet another from David French that has been answered many, many times by abolitionists; the objection of ectopic pregnancies. French says, “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. . . . [The prolife movement] must not order [mothers] to face death for the sake of pregnancies that will fail.”

We have written about this before, but will briefly restate the key points as it pertains to the criminalization issue:

If a “pro-life” bill leaves an exception for the life of the mother or any other loophole, it will be abused. An exception for ectopic pregnancies to be treated and given the full range of care isn’t necessary. Its presence in an abolition bill would only serve as an unnecessary loophole.

Language addressing the life of the mother is unnecessary because: 

1. Our current homicide laws already sort out these situations to serve justice for the victim and punishment for the criminal; and, 
2. Doctors are already operating under the Hippocratic Oath and daily making professional decisions just like this when treating multiple patients at once and triaging. Under true healthcare, the doctor’s intent isn’t to take a life. It’s to save all he can. He’s not criminalized for doing that now and won’t be under an abolition bill. An abolition bill would serve to send the death of the baby into the currently applicable investigatory processes and laws, whether by the hospital, law enforcement, or both.

Language addressing the life of the mother also allows for too many exceptions because: 

1. It’s unnecessary to add exemptions to current laws dealing with culpability in homicides,
2. If you add that language you make exceptions for justice and equal protection under the law. Doctors don’t need exceptions for providing life-saving care so long as they provide health care without intent to take a life. If the child dies in the process of saving the mother, under an ectopic it’s no different than other triage situations with multiple critical patients. Exceptions are loopholes abortion-minded doctors and mothers will exploit. 

This agrees with the Dublin Declaration on Maternal Healthcare, signed by more than 1,000 medical professionals around the world which states, 

“As experienced practitioners and researchers in obstetrics and gynecology, we affirm that direct abortion – the purposeful destruction of the unborn child – is not medically necessary to save the life of a woman.

“We uphold that there is a fundamental difference between abortion, and necessary medical treatments that are carried out to save the life of the mother, even if such treatment results in the loss of life of her unborn child.

“We confirm that the prohibition of abortion does not affect, in any way, the availability of optimal care to pregnant women.”

The life of the mother exception has been a smokescreen to justice for decades and it is time we put it to bed. The argument was first used by those who want abortion on demand and without apology. Christians need to stop poking a Mac truck sized hole in the equal protection  debate by using rare and often tragic situations to justify the allowance of the mass slaughter of children. We are reaping the bad fruit predicted in Ecclesiastes 8:11: “Because the sentence against an evil deed is not executed speedily, the heart of the children of man is fully set to do evil.”

Because the church is called to show mercy, we should not call on the state to be just?

Lastly, an often used argument against justice as equal protection for the preborn is that Christians are called to be merciful and should not be known as people who call for justice. We are to be known as those offering forgiveness and love, aren’t we? After all, the argument goes, if we received only justice, we would all still be in our sins, unforgiven and separated from God. If this issue weren’t so serious, this objection would almost be comical considering how often we heard the word “justice” come out of the mouths of evangelicals in the past ten years. 

Anyone who has spent any time with abolitionists knows that we care just as deeply about helping abortion-vulnerable and abortion-minded women and their families when they are in need. We are the ones outside the abortuaries preaching Christ and offering help, sometimes side-by-side with Christian prolifers. We have had our shirts soaked by the tears of a regretful post-abortive mother who limped out to the sidewalk. We are often found throwing baby showers and organizing baby registries for mothers who chose life. Many of us have fostered and adopted children. In fact, if abolitionists are not engaged in such mercy ministries rooted in the Gospel, we are quick to rebuke or even disfellowship the wayward among us for neglecting love, grace, and mercy. 

But we are careful not to be nicer than Jesus. And we are careful not to confuse the role our Lord gave to His churches with the role He has assigned to our governing authorities. Jesus came full of not just grace, but also truth (Jn. 1:14). Jesus offered grace to the woman at the well, but not without pointing to her violation of the law (Jn. 4:16-18). Jesus pronounced woes upon the scribes and Pharisees for neglecting the weightier matters of the law, two of which were love and mercy, yes; but also, one of which was justice (Matt. 23:23; Lk. 11:42). 

Because Jesus loved God’s law, He cared deeply about justice. Can you find a single Old Testament command or rebuke regarding the fatherless that did not include a reference to seeking justice for them? Who are the fatherless of our day? Not only the foster children, but certainly the endangered preborn child who has been abandoned by the cowardly father that refuses to offer his love and protection. What have God’s people always been called to do for these children whose rights are so easily and carelessly trampled on? We have always been called to do no less than one thing for them: provide justice (Ex. 22:22-24; Deut. 10:18; Ps. 10:16-18; 94:1-6; Is. 1:15-17; Zech. 7:8-10). 

Perhaps no Old Testament Scripture better encapsulates both the preborn’s need of the hour and God’s call to His people than Micah 6:6-8: “‘With what shall I come before the Lord, and bow myself before God on high? . . . . Shall I give my firstborn for my transgression, the fruit of my body for the sin of my soul?’ He has told you, O man, what is good and what does the Lord require of you but to do justice, and to love kindness, and to walk humbly with your God?”

Among the constant rebukes from the prophets to the Old Testament Kings was their need for repentance for neglecting justice to those who needed it most. And while we do not know all that the New Testament prophet John the Baptist said to King Herod, we do know that he openly rebuked the King for his sexual sin (Mk. 6:18-20). Likewise, Jesus spoke boldly to Ceasar saying, “You would have no authority over me at all unless it had been given you from above” (Jn. 19:11). He was warning the King with the truth of Psalm 2:12: “Kiss the Son, lest He be angry.” Likewise, we see the Apostle Paul reasoning with Felix regarding “righteousness and self-control and the coming judgment” (Acts 24:25). Why waste time with these political figures? After all, Christ’s Kingdom is not of this world. Perhaps it is because it is the responsibility of Christ’s people to remind the magistrates that they are servants of God called upon to exercise God-honoring stewardship and to recognize that the authority of earthly rulers is but a borrowed, delegated authority. I ask you, is it ever loving to your neighbor to ask your democratically elected rulers to pass unjust legislation? Don’t deceive yourself into believing that we can break God’s just laws in order to love our neighbor (James 2:4). Do not the Scriptures teach that, “when the wicked rule, the people groan” (Prov. 29:2)? Then why would we ask our magistrates to make unjust laws that are based on unequal weights and measures and partiality–both of which God says are wicked (Prov. 11:1-3; 18:5)? 

We suspect much of the weight of this argument comes from a lack of reflection on two very simple truths: 1) If Christians are not telling our legislators what God expects of them, who will? Even when our ERLC and our seminary ethicists fail us, we still have a role to speak clearly to our legislators and remind them that, no matter what they may have heard from the prolife movement, they do “not bear the sword in vain” and as God’s servant, they are expected to fulfill the role of “an avenger who carries out God’s wrath on the wrongdoer” (Rom. 13:4). And 2) How is it honest to affirm that abortion is murder out of one side of our mouths, but deny that it should be treated as murder out of the other side? Many abolitionists are post-abortive moms themselves and they are offended that so many Christians rob women of the good news of the Gospel by not being honest about the bad news of their guilt. If we truly want to minister to a culture that recognizes themselves as lawbreakers in need of God’s grace, we need to call on our legislators to make just laws. Christ came “not to call the righteous, but sinners” (Mt. 9:13).

A better way

What if we as a cooperating group of Southern Baptist churches called upon our legislators with one unified, principled, and prophetic voice to faithfully executing their responsibilities as God’s servants of justice, and to work with all urgency to enact legislation using the full weight of their office to interpose on behalf of the preborn, abolishing abortion immediately, without exception or compromise? What if this were the constant, resounding Southern Baptist drumbeat in our state and national capitol buildings? What would happen? Compromises and unjust incremental steps would surely still happen as legislators tried hard to placate our demands, but these compromises would not be our doing. In this way, we would fulfill our duty before God as we call on the magistrates to fulfill theirs. 

Abolitionists have a few helpful mantras, but perhaps none is more helpful than the reminder that, “the duty is ours, the results are God’s.” 

Be a Berean and examine the Scriptures for yourself to see if these things are so (Acts 17:11). And then, for the glory of God, “let God be true though every one were a liar” (Rom. 3:4). 

“Finally, brothers, whatever is true, whatever is honorable, whatever is just, whatever is pure, whatever is lovely, whatever is commendable, if there is any excellence, if there is anything worthy of praise, think about these things” (Phil. 4:8)