Why the States Did Not Prosecute Women for Abortion Before Roe v. Wade
This entry was posted on Friday, April 23rd, 2010 by Americans United for Life.

Clarke D. Forsythe
AUL Senior Counsel

Introduction
The political claim—that women were or will be prosecuted or jailed under abortion laws—has been made so frequently by Planned Parenthood, NARAL, and NOW over the past 40 years that it has become an urban legend. It shows the astonishing power of contemporary media to make a complete falsehood into a truism.

For 30 years, abortion advocates have claimed—without any evidence and contrary to the well-documented practice of ALL 50 states—that women were jailed before Roe and would be jailed if Roe falls (or if state abortion prohibitions are reinstated).

This claim rests on not one but two falsehoods:

First, the almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second “victim” of abortion; state courts expressly called the woman a second “victim.” Abortionists were the exclusive target of the law.

Second, the myth that women will be jailed relies, however, on the myth that “overturning” Roe will result in the immediate re-criminalization of abortion. If Roe was overturned today, abortion would be legal in at least 42-43 states tomorrow, and likely all 50 states, for the simple reason that nearly all of the state abortion prohibitions have been either repealed or are blocked by state versions of Roe adopted by state courts. The issue is entirely academic. The legislatures of the states would have to enact new abortion laws—and these would almost certainly continue the uniform state policy before Roe that abortion laws targeted abortionists and treated women as the second victim of abortion. There will be no prosecutions of abortionists unless the states pass new laws after Roe is overturned.

This political claim is not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.

Why did the states target abortionists and treat women as a victim of the abortionist?

It was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

The irony is that, instead of states prosecuting women, the exact opposite is true. To protect their own hide, it was abortionists (like the cult hero and abortionist Ruth Barnett when Oregon last prosecuted her in 1968), who, when they were prosecuted, sought to haul the women they aborted into court. As a matter of criminal evidentiary law, if the court treated the woman as an accomplice, she could not testify against the abortionist, and the case against the abortionist would be thrown out.

There are “only two cases in which a woman was charged in any State with participating in her own abortion”: from Pennsylvania in 19111 and from Texas in 1922.2 There is no documented case since 1922 in which a woman has been charged in an abortion in the United States.

Based on this record—spanning 50 states over the century before Roe v. Wade—it is even more certain that the political claim that any woman might be questioned or prosecuted for a spontaneous miscarriage has no record in history and will certainly not be the policy of any state in the future.

How was abortion law enforced? 

Going back as far as English and colonial law, the criminal law classified those involved in crimes as principals and accomplices. A principal is “the person whose acts directly brought about the criminal result.” An accomplice aids or abets the crime.

States did not treat women who had the abortion as either principals or accomplices. As the Oregon Supreme Court held as late as 1968, the abortionist commits the act, and the woman aborted is the object of that act. “A reading of the statute indicates that the acts prohibited are those which are performed upon the mother rather than any action taken by her. She is the object of the acts prohibited rather than the actor.”3

As one legal scholar in the 1980s who studied this issue concluded after surveying the 50 states, women “were never charged with murder, only seldom were named co-conspirators, and still more rarely were regarded as accomplices.”4

While some women were prosecuted for their abortions under the English common law, by the 1870s or 1880s, most American states came to recognize that the better policy was to not prosecute women. That was the position of New York by 1885.5

With the exception of [four] state cases, the vast majority of the states with reported cases that discussed this issue determined that states could not prosecute women under any theory of criminal liability.

States relied on various techniques of statutory interpretation, along with the generally held belief that women were victims of their abortions, to support their decisions to refrain from prosecuting women. As the appeals court in the District of Columbia wrote in 1901, “[b]y its terms, [D.C. Code Ann. § 809 (1901)] applies to the person or persons committing the act which produces the miscarriage, and not to the person upon whom it is committed, notwithstanding it may be done with her knowledge and consent. Not being liable to indictment thereunder, she is not an accomplice in the legal sense.”6

Based on the fact that abortion was dangerous and often fatal up to the 19th century, women were seen as victims.

In addition, another main reason for the non-prosecution of women is that relieving women from criminal liability provided states with a better chance of achieving convictions against abortionists—the principal.

While the reported cases in a minority of the states arrived at an opposite conclusion—as a matter of technical legal principle—even these states never took advantage of the opportunity they allotted to themselves to actually prosecute women.

This was expressly affirmed by the Maryland Supreme Court and by the Minnesota Supreme Court in almost identical terms.

Maryland: “While it may seem illogical to hold that a pregnant woman who solicits the commission of an abortion and willingly submits to its commission upon her own person is not an accomplice in the commission of the crime, yet many courts in the United States have adopted this rule, asserting that public policy demands its application and that its exception from the general rule is justified by the wisdom of experience.”7

Minnesota: “As a first impression, it may seem to be an unsound rule that one who solicits the commission of an offense, and willingly submits to its being committed upon her own person, should not be deemed an accomplice, while those whom she has thus solicited should be deemed principal criminals in the transaction. But in cases of this kind the public welfare demands the application of this rule, and its exception from the general rule seems to be justified by the wisdom of experience.”8

The target of abortion law was the abortionist—the principal in the crime.  

The courts expressly affirmed that the statutes targeted the abortionist with their language. The Arkansas Supreme Court write in 1970: “Our own statute, … is directed toward the person who administers or prescribes medicine or drugs to any woman with child, with intent to produce an abortion, or to produce or attempt to produce an abortion by any other means.”9

The Oregon Supreme Court expressed the same conclusion in 1968: “A reading of the statute indicates that the acts prohibited are those which are performed upon the mother rather than any action taken by her. She is the object of the acts prohibited rather than the actor. The class of persons against whom the statute is directed does not include those upon whom abortions are performed. Most similar state statutes are so construed.”10

Are there any known cases of a woman being indicted or tried for having an abortion in the U.S.? 

No. Not since 1922. There are “only two cases in which a woman was charged in any State with participating in her own abortion: from Pennsylvania in 191111 and from Texas in 1922.12

There is no documented case since 1922 in which a woman was even charged in an abortion in the United States.

Were women ever prosecuted for SELF-abortion?

Never in the United States. The last was in 1599—the end of the 16th century. As Villanova Law Professor Joseph Dellapenna, author of the encyclopedic book, Dispelling the Myths of Abortion History, has demonstrated, “in the entire history of Anglo-American law, it appears that the only woman to have been charged with a crime for self-abortion was Margaret Webb—in 1599.”

Iowa, as early as 1863, held that a woman could not be indicted for a self-abortion.13

Dellapenna also demonstrates that “while several states (including California, Connecticut, Indiana, New Hampshire, and New York) made self-abortion a crime, they did not prosecute any women—they enacted an exception to the accomplice evidence rule or granted women immunity from prosecution in order to obtain her testimony against the abortionist.”

As the Michigan Supreme Court held in 1963, “The majority view is that not only may she not be held for abortion upon herself but neither as an accomplice.”14

Those states with statutes on the books that prohibited women from aborting [self-abortion] did not prosecute.  

As researcher Paul Linton has pointed out, “[a]lthough more than one-third of the States [including Arizona, California, Connecticut, Delaware, Indiana, Minnesota, Montana, Nevada, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, Washington, and Wyoming] had statutes prohibiting a woman from aborting her own pregnancy [self-abortion] or submitting to an abortion performed on her by another, no prosecutions were reported under any of those statutes.”15

In the 1911 case in Pennsylvania, the trial court threw out the charge and the Pennsylvania Superior Court concurred, stating that “in the absence of clear statutory authority, ‘the woman who commits an abortion on herself is regarded rather as the victim than the perpetrator of the crime.’”

Based on this review of the 50 states, Linton concluded, “no American court has ever upheld the conviction of a woman for self-abortion or consenting to an abortion and, with the exception of [the Pennsylvania case from 1911 and Texas case from 1922], there is no record of a woman even being charged with either offence as a principal or as an accessory.”16

Which States treated women as victims? 

At least: California, the District of Columbia, Iowa, Maryland, Oklahoma, South Dakota, Tennessee, and Texas.

As long ago as 1880, a Texas court affirmed that the woman was a victim, not rhetorically but in the law: “The rule that she does not stand legally in the situation of an accomplice, but should rather be regarded as the victim than the perpetrator of the crime, is one which commends itself to our sense of justice and right, and there is certainly nothing in our law of accomplices which should be held to contravene it.”17

Many other state courts said the same thing:

California: “The abortee is considered the victim of the crime.”18

Delaware: Zutz v. State, 52 Del. 492, 160 A.2d 727 (1960).

District of Columbia (DC): “She is regarded as his victim, rather than an accomplice.”19

Idaho: State v. Rose, 75 Idaho 59, 267 P.2d 109 (1954).

Kentucky: Richmond v. Commonwealth, 370 S.W.2d 399 (KY 1963).

Maryland: “In Maryland a woman upon whom an abortion has been performed is regarded by the law as a victim of the crime, rather than a participant in it.”20

Minnesota: “in cases of this kind the public welfare demands the application of this rule, and its exception from the general rule seems to be justified by the wisdom of experience…She was the victim of a cruel act.”21

South Dakota (1924): “She does not, by consenting to the unlawful operation, become an accomplice in the crime. She should be regarded as the victim of the crime, rather than a participant in it.”22

Which states did NOT treat women as an accomplice? 

At least 30: Arkansas, California, Connecticut, Delaware, District of Columbia, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Vermont, and Virginia.

As long ago as 1915, one Texas court held, “It has been so many times decided by this court that the woman upon whom an abortion is committed is not an accomplice that we regard the question as settled.”23

As late as 1960, the Delaware Supreme Court wrote: “It is generally held in most states that a woman in an abortion case is not an accomplice. [citing Commonwealth v. Fisher, 189 Pa. Super. 13, 149 A. 2d 666 (1959); State v. Montifoire, 95 Vt. 508, 116 A. 77 (1921); State v. Hyer, 39 N. J. L. 598 (1877)] The reasoning of the courts seems to be that the woman is generally regarded as the victim of the crime rather than a participant in it.” [citing Wilson v. State, 36 Okla. Cr. 148, 252 P. 1106 (1927); Smart v. State, 112 Tenn. 539, 80 S. W. 586 (1904)]).24

Basoff v. State, 208 Md. 643, 653-654, 119 A. 2d 917, 923 (1956) (“it is also held in this State that a pregnant woman upon whom an abortion is produced is not an accomplice of the person who administers the substance or performs the operation to produce the abortion…In Maryland, a woman upon whom an abortion has been performed is regarded by the law as a victim of the crime, rather than as a participant in it.”25

See Thompson v. United States, 30 App. D.C. 352, 362-363 (1908) at 364 (“As the victim of an unlawfully procured miscarriage was not an accessory before the fact, she is not indictable as a principal offender…”).

Which states did treat a woman as an accomplice? 

There were 20 states in which statutes technically made it a crime for the woman to participate in her own abortion: Arizona, California, Connecticut, Delaware, Idaho, Indiana, Minnesota, Montana, Nevada, New Hampshire, New York, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Washington, Wisconsin, and Wyoming. However, these were not enforced or applied against women. There is no record of any prosecution of a woman as an accomplice even in these states.

Alabama: In 1916, an appeals court held that, as an evidentiary matter, the woman was considered an accomplice, but the woman’s guilt was not actually at issue in the case.26

Some states did treat the woman as a conspirator. 

Technically, courts in a handful of states treated the woman as a possible conspirator: Colorado, Iowa, New York, North Dakota,27 and Wisconsin.

Even in these states, however, the issue in the recorded cases was not the woman’s guilt—no woman was charged or was a co-defendant in the cases—but the admissibility of evidence against the abortionist. No woman was prosecuted.

Other states rejected treating the woman as a conspirator: California, New Jersey, and Pennsylvania.

But statutes in these states have been repealed, and the legislatures would have to enact wholly new legislation to address abortion.

Some states had statutes prohibiting solicitation of abortion—under the general rule that solicitation of any crime is a crime—but these were evenhandedly applied to men and women.  

At least Arizona, California, Connecticut, Idaho, South Dakota, and Utah.

For example, South Dakota had an anti-solicitation law for abortion. S.D. Compiled Laws Ann. 22-17-2 (1967).

However, there’s no record of any woman being prosecuted under this law, let alone convicted.

Even pro-abortion historians admit this record. 

The pro-abortion historian Leslie Reagan, in her 1997 book When Abortion Was A Crime, admits that states did not prosecute women for their abortions and that women did not face criminal liability as principals, accomplices, conspirators, solicitors, or murderers, and concedes that the purpose behind that law was not to degrade women but to protect them.

Conclusion 

The wisdom of not prosecuting women was based on extensive practical law enforcement experience in many states, over many years.

It will certainly be influential with prosecutors and state policy makers when Roe is overturned, and that should be the policy of legislators who are interested in the effective enforcement of abortion law.

Based on the 50-state record of enforcing abortion law for more than a century before Roe, Linton concluded that “if Roe is overruled, no woman would be prosecuted for self-abortion or consenting to an abortion, even in those few States where abortion prohibitions would be enforceable.”

Prolife legislators and pro-life leaders do not support the prosecution of women and will not push for such a policy when Roe is overturned. This is demonstrated by abortion regulations enacted in the past 20 years—like the federal partial birth abortion ban—in which women are expressly excluded from any possible prosecution. Instead, pro-life legislators are advocating laws that defend the unborn and protect women from the negative impact of abortion.


Endnotes

1. Commonwealth v. Weible, 45 Pa. Super. 207 (1911).

2. Crissman v. State, 93 Tex. Crim. 15, 245 S.W. 438 (Tex. Crim. App. 1922).

3. State v. Barnett, 249 Or. 226, 228, 437 P.2d 821, 822 (1968).

4. Paul D. Wohlers, J.D., Women and Abortion: Prospects of Criminal Charges (published in

People v. Vedder, 98 N.Y. 630, 632 (1885) (“It is quite clear that the woman spoken of in the statute is not regarded as one of the persons who could be guilty of the crime described in the 294th section and that she could not, therefore, be indicted under that section.”)

5. Thompson v. United States, 30 App. D.C. 352, 362-363 (1908).

6. Basoff v. State, 208 Md. at 654, 119 A. 2d at 923.

7. State v. Pearce, 56 Minn. 226, 231 57 N.W. 652, 653.

8. Heath v. State, 249 Ark. 217, 219, 459 S.W. 2d 420, 422 (1970) (citing Ark. Stat. Ann. §41-303 (Supp. 1969), cert. denied, 404 U.S. 910 (1971).

9. State v. Barnett, 249 Or. 226, 229, 437 P. 2d 821, 822 (1968) (emphasis added).

10. Commonwealth v. Weible, 45 Pa. Super. 207 (1911).

11. Crissman v. State, 93 Tex. Crim. 15, 245 S.W. 438 (Tex. Crim. App. 1922).

12. Hatfield v. Gano, 15 Iowa 177 (1863).

13. Petition of Vickers, 371 Mich. 114, 115, 123 N.W.2d 253, 254 (1963).

14. Paul Benjamin Linton, The Legal Status of Abortion in the States if Roe v. Wade is Overruled, 23 Issues in Law & Medicine 3, 6 n.15 (2007).

15. Paul Benjamin Linton, The Legal Status of Abortion in the States if Roe v. Wade is Overruled, 23 Issues in Law & Medicine 3, 6 n.15 (2007).

16. Watson v. State, 9 Tex. Ct. App. 237, 244 (1880).

17. People v. Reinard, 33 Cal.Rptr. 908, 912, 220 Cal.App.2d 720, 724 (1963). See also People v. Gibson, 33 Cal.App. 459, 166 P. 585 (1917).

18. Thompson v. United States, 30 App.D.C. 352, 363 (1908).

19. Basoff v. State, 208 Md. 643, 654, 118 A.2d 917, 923 (1956). This was the policy of Maryland as early as 1912. Meno v.

20. State, 117 Md. 435, 83 A. 759 (1912).

21. State v. Pearce, 56 Minn. 226, 230, 57 N.W. 652, 653 (1894).

22. State v. Burlingame, 47 S.D. 332, 198 N.W. 824 (1924).

23. Gray v. State, 77 Tex. Crim. 221, 229, 178 S.W. 337, 341 (1915).

24. Zutz v. State, 52 Del. 492, 496-497, 160 A. 2d 727, 729 (1960).

25. Meno v. State, 117 Md. 435, 83 A. 759 (1912).

26. Trent v. State, 15 Ala.App. 485, 73 So. 834 (1916).

27. State v. Mattson, 53 N.D. 486, 206 N.W. 778 (1925); State v. Reilly, 25 N.D. 339, 141 N.W. 720 (1913).

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