The inalienable right to life possessed by every human being is present from the moment of initial formation, and all human beings shall be entitled to the equal protection of persons under the law.
Can Women Be Punished for Abortions?
Bill Fortenberry
In an interview that aired on March 30, 2016, presidential hopeful Donald Trump unwittingly ignited a firestorm within the pro-life community when he said that women who kill their children through abortion should be punished.[1] Trump recanted that statement mere hours after the interview aired, but the blaze of reaction had already grown beyond control. Anti-child activists were quick to point out the barbarity of punishing a woman who chooses to kill her child, and the pro-life community largely agreed with them. Both groups have condemned Trump’s statement as heartless and dangerous.
There is, however, a third group of activists who have praised Trump’s original statement and condemned his recantation. This third group is the personhood/abolitionist branch of the pro-life community. According to this group, a woman who kills her own child should be punished regardless of the age of the child. These activists decry the hypocrisy of the larger pro-life movement claiming that the prenatal child deserves the equal protection of the law while also denying that equal protection by accepting punishments for mothers who kill their born children but rejecting punishment for mothers who kill prenatal children.
The pro-life response to this third group has been to claim that prosecuting a woman as an accomplice to her abortion would prevent the state from using the woman’s testimony to prosecute the actual abortionists. This is the arguments that was presented by Clarke Forsythe of Americans United for Life in a recent article on LifeNews.com.[2] Forsythe’s reasoning is based on accomplice witness laws such as this statute from Alabama:
A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence…[3]
Taken at face value, this law would seem to support Forsythe’s claim that prosecuting the woman as an accomplice would invalidate her testimony as evidence against her abortionist, but notice that I ended the quote with ellipses points. No accomplice witness statute makes such a bare statement about corroborating evidence. They all continue with an explanation of what kind of evidence is required.
The Alabama statute, for example, accepts any evidence “tending to connect the defendant with the commission of the offense.” And the California Criminal Jury Instructions advise the court to inform juries that:
Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime[s], and it does not need to support every fact (mentioned by the accomplice in the statement/ [or] about which the accomplice testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.[4]
In other words, if the woman is tried as an accomplice, her testimony against the abortionist can still be used as long as there is any evidence at all which connects the abortionist to the crime of abortion. This would include any evidence that the abortionist was at the scene of the crime when the baby was killed – a gps or cell phone record placing him in the vicinity, security camera footage showing the abortionist’s vehicle travelling toward and then away from the place of the crime, DNA evidence placing the abortionist at the scene. Any evidence, no matter how insignificant in itself, if it tends to connect the abortionist with the crime, is enough to corroborate the woman’s testimony and allow her testimony to be used in the conviction of the abortionist even if the woman were also being prosecuted as an accomplice. The ability to obtain corroborating evidence has increased so much in the past 43 years that the use of accomplice witnesses has become widely accepted in American society.
Forsythe cites several state level cases to support his claim, but what he does not adequately point out to his readers is that the practice of not treating the woman as an accomplice to an abortion which she procured has never once been sanctioned by law. This policy was repeatedly declared by various courts to be merely a rule of expediency. Prior to 1973, forensic science was not always capable of corroborating the woman’s testimony in order to secure a conviction against her abortionist, and so the courts in multiple states chose to evade the accomplice witness laws by considering the woman as a victim rather than as an accomplice. Nearly every court that did this admitted that it was violating the letter of the law in regards to the lesser offender in order to implement the spirit of the law against the greater offender.
In spite of these cases, the idea that a woman who procures an abortion cannot be prosecuted is not nearly as universally decided as Forsythe seems to imply. There is one case that Forsythe briefly mentioned (and then quickly dismissed) in which the court disagreed with the claim that the woman cannot be tried as an accomplice. In Trent v. State, an Alabama court ruled that:
If a construction is placed upon the statute that will allow the prospective mother with impunity to procure another to administer the drug or perform the operation, such construction would destroy much of its moral force. We therefore, hold, under the statute as amended, if the pregnant woman knowingly consents to such operation or the administration of such drug, unless she does so under the honest belief that it is necessary to the preservation of her life, she would be guilty of aiding or abetting, and indictable as a principal.[5]
Forsythe dismisses this ruling by stating that “the woman’s guilt was not actually at issue in the case,” but this seems a bit incongruous since the woman’s guilt was not directly at issue in any of the cases that Forsythe cited in favor of his view either. In each of those cases, the actual question at issue was whether or not the uncorroborated testimony of the woman was sufficient to sustain a conviction against the abortionist. This was also the question in the Alabama ruling, and the Alabama court determined that, under the 1911 abortion statute, the state did have a burden to corroborate the woman’s testimony in the prosecution of the abortionist.
This Alabama ruling was cited several years later in another Alabama case in which the conviction of an abortionist was overturned because the state failed to corroborate the testimony of the woman who had procured the abortion. In Steed v. State, the court ruled that the opinion given in Trent was “correct reasoning.”[6] One might be tempted to conclude from this case that Forsythe is correct in stating that women who seek abortion must be considered victims and not accomplices in order to successfully convict the abortionists who actually perform the crime. However, Steed v. State is not the only case that relied on the opinion given in Trent.
About five years after Steed, the Alabama Court of Appeals heard another case in which the abortionist claimed that the woman’s testimony should be thrown out because she was an accomplice to the crime. In Dykes v. State, the Alabama court upheld the conviction of the abortionist and ruled that, even though the woman was an accomplice, her testimony was admissible because it was corroborated by other evidence. This case provides an excellent example of how little evidence is needed in order to corroborate the testimony of an accomplice. In answer to the abortionists claim, the Dykes court wrote:
It has been repeatedly held, and advisedly so, that the corroboration of the testimony of an accomplice need not go to every material fact to which he testifies. If corroborated in some of such facts the jury may believe that he speaks the truth as to all. The evidence necessary to corroborate an accomplice need not be of itself sufficient to warrant a conviction.
In Bradley v. State, this court said: "Corroborate means to strengthen, not necessarily the proof of any particular fact to which the witness has testified, but the probative, criminating force of his testimony."
In the instant case we hold that the lower court properly held there was sufficient evidence of the corroboration of the accomplices' testimony to warrant the submission of this case to the jury for its consideration.
As to the foregoing we hold that the testimony of State witness Dr. C.T. Jones comes within the stated rule. This doctor witness was called to attend upon Mrs. Hassie Spann, shortly after the alleged commission of the offense, and at that time she was complaining of abdominal pains and was having uterine contractions, etc. The evidence shows he was called to her shortly after the instrument used to effect the abortion had been removed from her womb. It is clearly deducible from the evidence that Mrs. Spann, 32 years of age, and already the mother of several children, was a robust healthy woman, and all of the evidence discloses without dispute this woman had a miscarriage the second day after the doctor was called to attend her. Further, that the child in question was fully developed for one of that period of pregnancy. This evidence, and other of like import, justified the court in its ruling in this connection, and said ruling meets the approval of this court.[7]
This ruling demonstrates that very little corroborative evidence is required in order to admit the testimony of the woman as an accomplice. It is not necessary for Judges to avoid the accomplice witness law by declaring the woman a victim. In fact, the Dykes court went so far as to determine that, not only should the woman’s testimony be considered the testimony of an accomplice, but also that if she voluntarily procures an abortion, then it would be wrong not to punish her for the crime of murder. In the words of the court:
This record does not disclose what, if any, action has been taken against the father and mother of the murdered child, who so blatantly admit their atrocious conduct in connection with the crime here charged against this appellant. If these two persons have been permitted to go unpunished it is certainly, in our opinion, a travesty upon justice, and the law and order by which we are governed.[8]
Now, some may argue that Alabama only represents a single state, and that the preponderance of evidence lies on the side of Mr. Forsythe. But what if there were an opinion from the US Supreme Court that supported the position taken by the Alabama courts? While the Supreme Court has never ruled on the question of whether a woman who procures an abortion can be tried as an accomplice, the Court has issued several opinions on the use of accomplices as witnesses in trial. In these opinions, the Supreme Court has repeatedly determined that state level courts are free to allow the testimony of an accomplice witness even if that testimony is completely uncorroborated.
In Cametti v. United States, the Court determined that “there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them.”[9] In Lisenba v. California, the Court declared that, even when the accomplice’s testimony is not corroborated, “The Fourteenth Amendment does not forbid a state court to construe and apply its laws with respect to the evidence of an accomplice.”[10] And in Hoffa v. United States, the Court determined that
The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.[11]
Time and again, the US Supreme Court has demonstrated that Forsythe’s claim is incorrect. The states are not required to view the woman who procures an abortion as a victim in order to use her testimony in the trial of her abortionist. The very fact that state level courts were willing to evade the accomplice witness laws by simply declaring the woman to be a victim is in itself a demonstration of the great liberty that the state courts have in determining whether or not to admit the testimony of any accomplice. And even under the strictest reading of the various state level accomplice witness laws, the woman’s testimony only requires the barest of corroborative evidence to substantiate its consideration by the jury.
A woman who willingly procures an abortion both can and should be tried as an accomplice to murder. As the Alabama court recognized, anything less would be “a travesty upon justice, and the law and order by which we are governed.”
_______________________________________________________________________________________
[1] http://www.msnbc.com/hardball/watch/trump-s-hazy-stance-on-abortion-punishment-655457859717
[2] Forsythe, Clarke D., “When Abortion Was Illegal, Women Were Not Jailed for Having Abortions. Here’s Why,” LifeNews.com, Accessed April 7, 2016, http://www.lifenews.com/2016/03/31/when-abortion-was-illegal-women-were-not-jailed-for-having-abortions-heres-why/
[3] Ala. Code 1975, § 12-21-222
[4] https://www.justia.com/criminal/docs/calcrim/300/334.html
[5] Trent v. State, 15 Ala. App. 485 (Ala. Crim. App. 1916)
[6] Steed v. State, 27 Ala. App. 263 (Ala. Crim. App. 1936)
[7] Dykes v. State, 30 Ala. App. 129 (Ala. Crim. App. 1941) (Internal citations removed)
[8] ibid
[9] Cametti v. United States, 242 US 470 (Supreme Court 1917)
[10] Lisenba v. California, 314 US 219 (Supreme Court 1941)
[11] Hoffa v. United States, 385 US 293 (Supreme Court 1966)
There is, however, a third group of activists who have praised Trump’s original statement and condemned his recantation. This third group is the personhood/abolitionist branch of the pro-life community. According to this group, a woman who kills her own child should be punished regardless of the age of the child. These activists decry the hypocrisy of the larger pro-life movement claiming that the prenatal child deserves the equal protection of the law while also denying that equal protection by accepting punishments for mothers who kill their born children but rejecting punishment for mothers who kill prenatal children.
The pro-life response to this third group has been to claim that prosecuting a woman as an accomplice to her abortion would prevent the state from using the woman’s testimony to prosecute the actual abortionists. This is the arguments that was presented by Clarke Forsythe of Americans United for Life in a recent article on LifeNews.com.[2] Forsythe’s reasoning is based on accomplice witness laws such as this statute from Alabama:
A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence…[3]
Taken at face value, this law would seem to support Forsythe’s claim that prosecuting the woman as an accomplice would invalidate her testimony as evidence against her abortionist, but notice that I ended the quote with ellipses points. No accomplice witness statute makes such a bare statement about corroborating evidence. They all continue with an explanation of what kind of evidence is required.
The Alabama statute, for example, accepts any evidence “tending to connect the defendant with the commission of the offense.” And the California Criminal Jury Instructions advise the court to inform juries that:
Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime[s], and it does not need to support every fact (mentioned by the accomplice in the statement/ [or] about which the accomplice testified). On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.[4]
In other words, if the woman is tried as an accomplice, her testimony against the abortionist can still be used as long as there is any evidence at all which connects the abortionist to the crime of abortion. This would include any evidence that the abortionist was at the scene of the crime when the baby was killed – a gps or cell phone record placing him in the vicinity, security camera footage showing the abortionist’s vehicle travelling toward and then away from the place of the crime, DNA evidence placing the abortionist at the scene. Any evidence, no matter how insignificant in itself, if it tends to connect the abortionist with the crime, is enough to corroborate the woman’s testimony and allow her testimony to be used in the conviction of the abortionist even if the woman were also being prosecuted as an accomplice. The ability to obtain corroborating evidence has increased so much in the past 43 years that the use of accomplice witnesses has become widely accepted in American society.
Forsythe cites several state level cases to support his claim, but what he does not adequately point out to his readers is that the practice of not treating the woman as an accomplice to an abortion which she procured has never once been sanctioned by law. This policy was repeatedly declared by various courts to be merely a rule of expediency. Prior to 1973, forensic science was not always capable of corroborating the woman’s testimony in order to secure a conviction against her abortionist, and so the courts in multiple states chose to evade the accomplice witness laws by considering the woman as a victim rather than as an accomplice. Nearly every court that did this admitted that it was violating the letter of the law in regards to the lesser offender in order to implement the spirit of the law against the greater offender.
In spite of these cases, the idea that a woman who procures an abortion cannot be prosecuted is not nearly as universally decided as Forsythe seems to imply. There is one case that Forsythe briefly mentioned (and then quickly dismissed) in which the court disagreed with the claim that the woman cannot be tried as an accomplice. In Trent v. State, an Alabama court ruled that:
If a construction is placed upon the statute that will allow the prospective mother with impunity to procure another to administer the drug or perform the operation, such construction would destroy much of its moral force. We therefore, hold, under the statute as amended, if the pregnant woman knowingly consents to such operation or the administration of such drug, unless she does so under the honest belief that it is necessary to the preservation of her life, she would be guilty of aiding or abetting, and indictable as a principal.[5]
Forsythe dismisses this ruling by stating that “the woman’s guilt was not actually at issue in the case,” but this seems a bit incongruous since the woman’s guilt was not directly at issue in any of the cases that Forsythe cited in favor of his view either. In each of those cases, the actual question at issue was whether or not the uncorroborated testimony of the woman was sufficient to sustain a conviction against the abortionist. This was also the question in the Alabama ruling, and the Alabama court determined that, under the 1911 abortion statute, the state did have a burden to corroborate the woman’s testimony in the prosecution of the abortionist.
This Alabama ruling was cited several years later in another Alabama case in which the conviction of an abortionist was overturned because the state failed to corroborate the testimony of the woman who had procured the abortion. In Steed v. State, the court ruled that the opinion given in Trent was “correct reasoning.”[6] One might be tempted to conclude from this case that Forsythe is correct in stating that women who seek abortion must be considered victims and not accomplices in order to successfully convict the abortionists who actually perform the crime. However, Steed v. State is not the only case that relied on the opinion given in Trent.
About five years after Steed, the Alabama Court of Appeals heard another case in which the abortionist claimed that the woman’s testimony should be thrown out because she was an accomplice to the crime. In Dykes v. State, the Alabama court upheld the conviction of the abortionist and ruled that, even though the woman was an accomplice, her testimony was admissible because it was corroborated by other evidence. This case provides an excellent example of how little evidence is needed in order to corroborate the testimony of an accomplice. In answer to the abortionists claim, the Dykes court wrote:
It has been repeatedly held, and advisedly so, that the corroboration of the testimony of an accomplice need not go to every material fact to which he testifies. If corroborated in some of such facts the jury may believe that he speaks the truth as to all. The evidence necessary to corroborate an accomplice need not be of itself sufficient to warrant a conviction.
In Bradley v. State, this court said: "Corroborate means to strengthen, not necessarily the proof of any particular fact to which the witness has testified, but the probative, criminating force of his testimony."
In the instant case we hold that the lower court properly held there was sufficient evidence of the corroboration of the accomplices' testimony to warrant the submission of this case to the jury for its consideration.
As to the foregoing we hold that the testimony of State witness Dr. C.T. Jones comes within the stated rule. This doctor witness was called to attend upon Mrs. Hassie Spann, shortly after the alleged commission of the offense, and at that time she was complaining of abdominal pains and was having uterine contractions, etc. The evidence shows he was called to her shortly after the instrument used to effect the abortion had been removed from her womb. It is clearly deducible from the evidence that Mrs. Spann, 32 years of age, and already the mother of several children, was a robust healthy woman, and all of the evidence discloses without dispute this woman had a miscarriage the second day after the doctor was called to attend her. Further, that the child in question was fully developed for one of that period of pregnancy. This evidence, and other of like import, justified the court in its ruling in this connection, and said ruling meets the approval of this court.[7]
This ruling demonstrates that very little corroborative evidence is required in order to admit the testimony of the woman as an accomplice. It is not necessary for Judges to avoid the accomplice witness law by declaring the woman a victim. In fact, the Dykes court went so far as to determine that, not only should the woman’s testimony be considered the testimony of an accomplice, but also that if she voluntarily procures an abortion, then it would be wrong not to punish her for the crime of murder. In the words of the court:
This record does not disclose what, if any, action has been taken against the father and mother of the murdered child, who so blatantly admit their atrocious conduct in connection with the crime here charged against this appellant. If these two persons have been permitted to go unpunished it is certainly, in our opinion, a travesty upon justice, and the law and order by which we are governed.[8]
Now, some may argue that Alabama only represents a single state, and that the preponderance of evidence lies on the side of Mr. Forsythe. But what if there were an opinion from the US Supreme Court that supported the position taken by the Alabama courts? While the Supreme Court has never ruled on the question of whether a woman who procures an abortion can be tried as an accomplice, the Court has issued several opinions on the use of accomplices as witnesses in trial. In these opinions, the Supreme Court has repeatedly determined that state level courts are free to allow the testimony of an accomplice witness even if that testimony is completely uncorroborated.
In Cametti v. United States, the Court determined that “there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them.”[9] In Lisenba v. California, the Court declared that, even when the accomplice’s testimony is not corroborated, “The Fourteenth Amendment does not forbid a state court to construe and apply its laws with respect to the evidence of an accomplice.”[10] And in Hoffa v. United States, the Court determined that
The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.[11]
Time and again, the US Supreme Court has demonstrated that Forsythe’s claim is incorrect. The states are not required to view the woman who procures an abortion as a victim in order to use her testimony in the trial of her abortionist. The very fact that state level courts were willing to evade the accomplice witness laws by simply declaring the woman to be a victim is in itself a demonstration of the great liberty that the state courts have in determining whether or not to admit the testimony of any accomplice. And even under the strictest reading of the various state level accomplice witness laws, the woman’s testimony only requires the barest of corroborative evidence to substantiate its consideration by the jury.
A woman who willingly procures an abortion both can and should be tried as an accomplice to murder. As the Alabama court recognized, anything less would be “a travesty upon justice, and the law and order by which we are governed.”
_______________________________________________________________________________________
[1] http://www.msnbc.com/hardball/watch/trump-s-hazy-stance-on-abortion-punishment-655457859717
[2] Forsythe, Clarke D., “When Abortion Was Illegal, Women Were Not Jailed for Having Abortions. Here’s Why,” LifeNews.com, Accessed April 7, 2016, http://www.lifenews.com/2016/03/31/when-abortion-was-illegal-women-were-not-jailed-for-having-abortions-heres-why/
[3] Ala. Code 1975, § 12-21-222
[4] https://www.justia.com/criminal/docs/calcrim/300/334.html
[5] Trent v. State, 15 Ala. App. 485 (Ala. Crim. App. 1916)
[6] Steed v. State, 27 Ala. App. 263 (Ala. Crim. App. 1936)
[7] Dykes v. State, 30 Ala. App. 129 (Ala. Crim. App. 1941) (Internal citations removed)
[8] ibid
[9] Cametti v. United States, 242 US 470 (Supreme Court 1917)
[10] Lisenba v. California, 314 US 219 (Supreme Court 1941)
[11] Hoffa v. United States, 385 US 293 (Supreme Court 1966)