By John Michener

I recently received an article from a pro-life apologist who tried to make a positive case for continuing to protect women who choose to kill their offspring by abortion. Here are the author’s key claims in her own words:

“[T]he vast, vast, vast majority of women who have abortions…don’t have the level of culpability or knowledge necessary to make it just to prosecute them for having abortions.”

“Given the cultural knowledge in the U.S. as it is today, I don’t believe it would be just to pass a law under which women could be prosecuted for having an abortion.”

“I hope we will be able to continue to educate people, change minds, and change culture such that there will come a time in the future when it is obvious enough and broadly enough known that human fetuses are people that [to pass a law under which women could be prosecuted] will be just someday.”

The author believes that while abortion advocates may view the preborn as biological humans, they do not view them as persons with rights. The author’s argument is that if a woman does not believe her fetus is a person, then she would not be morally guilty for killing her fetus. Therefore, even if a law against the act were in force, the author believes such a woman should not be prosecuted or found legally guilty.

Here is the problem. Whether a fetus is a person, and not just a biological human organism, is a very high-level, philosophical question. In fact, most people do not sit around pondering the question of personhood. Philosophers who do ponder the idea find it interesting to consider the moral status of non-human persons such as aliens from another planet or messengers from heaven. But in pregnancy we are not considering non-human persons living in an unexpected place. Rather, we are considering human persons living in a normal, expected place. Reasonable people would expect to find tiny humans in the womb, the specific function of which is to feed and house tiny humans.

We can grant that many women who choose to abort may be ignorant about the philosophical question of personhood. But when it comes to culpability, just how important is it for someone to consciously understand that humans are also persons? Perhaps a specific legal example would help shed some light.

Our state’s criminal code defines homicide as “the killing of one human being by another” and stipulates that “‘human being’ includes an unborn child…” (21 OK Stat § 691). It further clarifies that an unborn child “means the unborn offspring of human beings from the moment of conception, through pregnancy, and until live birth, including the human conceptus, zygote, morula, blastocyst, embryo, and fetus” (63 OK Stat § 1-730). Do most people think of preborn humans as persons? Maybe they do, or maybe they do not. But they certainly think of them as embryos and fetuses, which are living humans, and that level of knowledge is enough.

Note that in homicide cases involving a pregnant woman, the defendant is charged not only with the death of the mother, but also with the death of her fetus which is legally a “human being” or “unborn child.” Furthermore, the perpetrator will be charged regarding the fetus whether or not he believes a fetus is a person or even knew that the woman was pregnant. He is still held legally responsible for killing an innocent human. These charges do not seem to offend or outrage the public. No one is marching in the streets demanding that the perpetrator be exonerated for killing the fetus which had perhaps not yet become a person. That is because reasonable people know the mother was pregnant with a fellow human who was inherently valuable and ought not to have been killed any more than the mother.

So, returning to the author’s point, the relevant question should not be whether a woman believes that a fetus is a person, but whether a pregnant woman ought to know that she might kill a tiny human when she chooses abortion. This is a much more reasonable and widely accepted level of knowledge and one that is directly addressed in state criminal codes. Due to the overwhelming availability of information about pregnancy and human development, not to mention state statutes that require informed consent, we believe women are in fact giving informed consent when they choose to kill their offspring by abortion, and they cannot claim ignorance as an excuse.

Now consider our criminal justice system. The question of what the offender knew or should have known is central in determining the level of culpability. Pointing to the concept of mens rea (the guilty mind), the author claims it would never be appropriate to prosecute a woman for committing abortion. She explains: “Basically, for an action to count as first-degree or second-degree murder, it has to not only be the case that the person killed someone (the guilty act), but also that they knew they were killing a person and intended to kill a person (the guilty mind).”

The author is correct to consider mens rea, but properly applied, it actually undermines her argument. That is because there are lower levels of mens rea. An act can be considered negligent homicide when the one doing it should have known that harm would occur. Any reasonable woman should know that the act of sex creates a tiny needy human. Any reasonable pregnant woman considering abortion, especially one who holds in her hand a supercomputer with AI connected to the internet, should know there is a chance that abortion kills a tiny human. Therefore, at a bare minimum, many of the choices to abort absolutely meet the standard of negligent homicide.

Another hallmark of our criminal justice system is the presumption of innocence. Even after we enact a law that makes it criminal to perform an abortion on one’s self, all women are presumed innocent until proven guilty. The entire system is designed to protect the accused. District Attorneys would still have to build a case with evidence that the accused parties did commit the act. Furthermore, prosecutions do not equal convictions. The outcome would still depend upon a trial in which a jury would judge the case. And after all that, even with a guilty verdict, a range of penalties is available to fit the circumstances.

Finally, civil law is a powerful teacher that modifies behavior and shapes culture. As we conclude, imagine two paths before us. The first belongs to the author whom we have been critiquing. The author’s path begins with the claim that widespread ignorance about personhood among women makes it unfair to criminalize the act of abortion for women. She believes we must first launch an education campaign to bring everyone’s information about fetal personhood to an unspecified level of acceptability prior to criminalizing the act of abortion for women. In the years it might take to reach the hypothetical, immeasurable goal, elective abortion would stay permissible for women. This path results in the ongoing deaths of hundreds of thousands to millions of our innocent preborn neighbors. Beyond these appalling results, we ought to fear the judgement of God upon our communities on account of bloodguilt.

On the other hand, we could pursue the path of King Josiah who put a stop to child sacrifice in his day. He did not wait for the successful completion of a decades-long education campaign to teach the community about the inherent value of their children. Rather, he announced that the law would protect children and punish those who broke the law. The law was his instrument of education.

Why, in the 1970s, did hundreds of thousands of women in the U.S. suddenly decide that it was okay to dismember their babies alive? The de facto law of Roe v. Wade taught them, and it taught them quickly. Similarly, if we want to educate a lot of people quickly that preborn humans are valuable and should be protected, the most effective way to do so is with a law that makes it a criminal act for anyone, including women, to kill preborn humans by abortion. Enactment of this law will gain media coverage and change how AI summaries of the law appear in search engines. Enforcement of the law will bring further media coverage of marquee prosecutions. Through the instruction of the law, various types of ignorance among the public will be cured within a matter of weeks to months. Because people properly fear prosecution and jail time, they will be strongly influenced to obey the law. Because the law agrees with and reinforces moral intuition, it is even more likely to be accepted and effective.

Outside of moral conscience, the civil law of government is one of the most influential teachers and highest authorities in any community. And when it agrees with moral conscience it becomes all the more effective. Godly law restrains sin. That is why we must change what the law and government are telling the people about abortion. This path results in the rescue of countless innocent lives. Furthermore, God is faithful to forgive and bless those jurisdictions which have been purified of bloodguilt through repentance.

In closing let us imagine a future where elective abortion has been fully criminalized – no exceptions for women. Consider a teenage girl who desperately does not want to be pregnant, so she asks her phone how she can terminate her pregnancy. Within seconds she might be reading an AI summary along these lines: “Certain pharmaceuticals and surgical procedures can be used to terminate a pregnancy, but this practice, referred to as abortion, is not legal. State law makes it a criminal offense for anyone to solicit or perform an abortion, with charges ranging from negligent homicide to first degree murder.” Faced with this information, will she choose to break the law? Not likely. If she does break the law, would it be just to prosecute her? Yes. Was it just to have enacted the law? Absolutely.

For a more complete analysis, visit OklahomansUnitedforLife.com/on-ignorance-and-innocence