In 2016, Donald Trump ignited a political firestorm when he suggested that women should be punished for having abortions. Although he backtracked, Trump’s misstep launched a debate about whether women have been or should be punished for having abortions. At the same time, Trump’s comments revealed that punishing women has become far more than an abstraction. In 2016, Indiana resident Purvi Patel became just the most recent visible example when she was sentenced to twenty years for feticide and child neglect for inducing an abortion.
But in spite of the furor created by Trump’s comment and Patel’s conviction, the history surrounding abortion and the punishment of women has remained obscure. Using original archival research, this Article closes that gap, exploring the history of pro-life debates about when, whether, and why to punish women. From this history, a paradox emerges. Over time, the pro-life movement committed more to a woman-protective strategy at the same time that pro-lifers justified the prosecution of women who violated laws on abortion and drug use.
If those on opposing sides of the abortion debate actually agree on the need to protect women, this paradox should be resolved. This Article proposes several legal steps that those on either side could take to demonstrate an interest in protecting women. As an initial matter, both movements should eliminate vague language in feticide laws that could apply to women having abortions and repeal any statute explicitly authorizing such punishment. As importantly, both sides should work for alternatives to criminalization. These steps should include a campaign for additional funding for drug treatment programs at the state and federal level and laws to check some of the reasons that make women so desperate to terminate a pregnancy, including domestic violence. This kind of reform campaign would ensure that the reality and rhetoric surrounding the punishment of pregnant women finally match.