Bottom Line Up Front: If the goal is reducing abortions, criminalization is impractical, ineffective, and counterproductive.
In the last post we considered the performance of punishment when it comes to abortion and we saw that while most mainline pro-life groups say abortion is murder, they do not believe that women who choose abortion should be punished as murderers. Let’s turn our attention now to the promiseof punishment, which, as I mentioned in the last post, is intended to function as a deterrent to crime.
Theoretically, criminalizing a behavior with the promise of punishment should lead to a reduction in that behavior. So what about when it comes to abortion? Does criminalizing abortion deter women from terminating their pregnancies? In short, the answer is “not really.” This has been demonstrated on several different fronts.
Global research on abortion consistently concludes that “abortion rates are similar in countries where abortion is highly restricted and where it is broadly legal.” As a variety of studies have shown, the criminalization of abortion doesn’t do much in the way of reducing abortion. More often than not, it simply drives it underground. Wealthy women who can afford to do so often travel to places where abortion is legal. Of even greater concern, however, is the fact that poor women experiencing unintended pregnancy often resort to dangerous methods of self-abortion, the kinds that the World Health Organization tell us lead to disproportionately high rates of maternal death. Complicating this further is the fact that in areas where abortion is criminalized, obtaining accurate abortion data becomes even more difficult. This would seem to suggest that, when self-induced abortions are factored in, abortion rates in areas of criminalization might be even higher than reported.
The prevalence of abortion in spite of criminalization has proven true even in America. As Leslie Reagan has states in her landmark book When Abortion Was a Crime,
Despite the criminalization of abortion nationwide, abortion continued…The widespread acceptance of abortion, expressed in word and deed during the era of its illegality, suggests the persistence of a popular ethic that differed from that of the law and the official views of medicine and religion.
In 2016, the Boston Globe ran an illuminating piece in which they pulled stories from their own archives demonstrating that prior to Roe v. Wade abortion in America was “not legal, not safe, and not rare.” The authors of the story summarize the reality:
Declaring abortion illegal never abolished it. It simply pushed the procedures and those who sought them to the margins — to rooming houses, to doctors working in the shadows, to criminals, to snake-oil remedies like guzzling turpentine or bleach. Mothers, sisters, and daughters begged and borrowed money, then were blackmailed if they survived the procedure. Many died from complications. Doctors and nurses were surveilled by police, imprisoned, and driven to penury…And yet the practice continued.
What was true in pre-Roe America is still at least partially true today around the world in countries where abortion has been criminalized. Legal scholar and professor Michelle Oberman writes, “I’ve spent the past decade studying abortions in Latin American countries where abortion is always, or almost always, illegal. Yet, abortion in these countries remains commonplace.” The difference between pre-Roe America and present-day Latin America is the relative safety of illegal abortion. Oberman explains:
[Illegal abortion] is vastly safer than it was in the past, thanks to a revolution that has replaced back alleys with blister packs ordered online… Abortifacient drugs have become so readily available in places like Chile and El Salvador that it has become impossible to enforce abortion bans. That was also the case in Ireland, where by some accounts, [before last year’s legalization] at least two Irish women a day were self-administering abortions using pills.
So while abortifacient drugs are becoming easier to access and therefore making illegal abortion less dangerous for women, global research still shows that an average of 45 percent of abortions worldwide are considered “unsafe” according to World Health Organization guidelines. There is a direct link between the safety of abortions and their legality.
It’s worth noting here that the ineffectiveness of criminalizing abortion is not a new discovery. You’ll recall from an earlier post the reason Pope Gregory XIV overturned Pope Sixtus V’s papal bull, which had codified all abortion from conception as murder:
Experience showed Gregory that the bull was too harsh and could not deliver its “hoped for fruit.” Not only had Sixtus’s bull “not diverted” the practice of abortion, but it had even provided the opportunity “for very many sacrileges and for the most grave sins and crimes”: people went on aborting, and because travelling to Rome was not an option, they accepted or ignored their excommunication.
About 150 years later, Franceso Cangiamila, a doctor of law turned Jesuit priest, took a particular interest in issues pertaining to pregnancy and birth. In 1745 he published a book entitled Embriologia Sacra, or Sacred Embryology. Consistent with Catholic teaching, Cangiamila was morally opposed to intentional abortion. In fact, Cangiamila had such regard for the unborn that one aspect of his work was describing for doctors and priests how to perform a cesarean section on a woman who died while pregnant in order to baptize the fetus. Nevertheless, Cangiamila opposed strict punishments for women who had willfully terminated their pregnancies. As one historian describes it,
Cangiamila’s aim was to demonstrate to those who held ecclesiastical power that the death penalty or similar harsh penalties, as advocated by Sixtus V, were not the solution to the abortion issue. On the contrary, Cangiamila advocated the need of great caution when dealing with such situations. The punishment of past crimes did not interest him: he was only interested in putting an end to all types of abortion in the future. Thus, Cangiamila was not afraid to show that excommunication and the death penalty were practically useless as weapons to prevent women from committing willful abortions. According to him, women were committing abortion because they found themselves in desperate situations, unable to defend themselves from the stigma of shame even though the natural instinct of a woman is to protect her baby (emphasis added).
From both a historical and global perspective, the conclusion seems clear: criminalization is an ineffective deterrent for abortion. Not only does criminalization not reduce abortions to any significant degree, but it often leads women, especially poor women, to resort to unsafe methods of self-induced abortion that can, and often do, cause maternal death. But the problems with criminalization don’t stop there.
In order for laws to be effective, they must be enforced, which means there must be a system for policing those laws. As you might imagine, policing abortion laws is nearly impossible. If every embryo and every fetus is a human person, then every single miscarriage becomes a potential crime scene. Logically, that would mean every miscarriage would be subject to police investigation, just like the death of any other child is. Not only does that seem remarkably insensitive to the woman or couple experiencing the loss, but it also seems logistically impossible, considering that 10 to 15 percent of known pregnancies end in miscarriage.
Countries that have criminalized abortion have run into this very problem. Michelle Oberman explains that in El Salvador, government officials rely on doctors to report women they suspect of willfully inducing abortions. There are several problems with this. First, she explains, “doctors have no reliable way to tell a natural miscarriage from an abortion.” This, of course, creates a culture of suspicion in which, understandably, pregnant women experiencing problems or miscarriage might avoid seeking medical attention for fear of being reported to the authorities. Not only that, but this also leads to the well-documented issue of women being wrongfully prosecuted and imprisoned simply for having miscarriages. This problem is compounded by the fact that poor women are suspected and reported at significantly disproportionate rates than wealthy women.
In review we’ve seen that criminalizing abortion is impractical, ineffective, and counterproductive. It’s impractical because there is no way to effectively police and enforce abortion laws. It’s ineffective because it doesn’t deter women from getting abortions. It’s counterproductive because it creates a culture of mistrust and fear. Fortunately, for those who are truly pro-life, there are other evidence-based, proven ways of actually reducing abortion. We’ll look at those in a later post.
 Guttmacher Institute, “Fact Sheet: Induced Abortion Worldwide,” March 2018. It’s worth noting that many “pro-lifers” attempt to discredit the Guttmacher Institute’s research by referencing its prior association with Planned Parenthood. While it’s true that Planned Parenthood did found the institute, the institute became a financially independent organization in 2007 and is widely regarded as a reputable, trustworthy research organization. Not only do both sides of the abortion debate rely on Guttmacher’s research, so does the respected World Health Organization and other public health organizations. The online Media Bias/Fact Checker website concludes that Guttmacher “affiliates to the left of center politically, but provides excellent sourcing and factual information. We rate this source left-center and factual.”
 Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973, (Berkley: University of California Press, 1997), 20-21.
 Alex Kingsbury and Kathleen Kingsbury, “Life – and Death – Before Roe v. Wade,” The Boston Globe, April 08, 2016,
 Michelle Oberman, “What Happens When Abortion is Banned,” New York Times, May 31, 2018, https://www.nytimes.com/2018/05/31/opinion/sunday/abortion-banned-latin-america.html.
 Guttmacher Institute, “Fact Sheet: Induced Abortion Worldwide,” March 2018.
John Christopoulos, “Abortion and the Confessional in Counter-Reformation Italy,” Renaissance Quarterly 65, no. 2 (2012): 443–84. doi:10.1086/667257.
 Oberman, “What Happens When Abortion is Banned.”