Abortion Sentencing & Second-Class Citizenship

Some of you may recall that, in 2006, South Dakota passed an ill-fated law[1] aimed at banning virtually all abortions.  Though the scope of the intended ban,[2] as well as its later demise in a statewide referendum,[3] garnered the most headlines, one aspect I found interesting was its penalty provision:

Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.

Any violation of this section is a Class 5 felony.[4]

Recall that, for those on the prolife side, abortion is morally equivalent to murder.[5] It is therefore noteworthy that, had the aforementioned law actually taken effect, it would have established abortion as the most lightly-punished homicide on South Dakota’s books.  The penalty for violating that law would have been far less severe[6] than that associated with murder,[7] manslaughter,[8] or vehicular homicide.[9]

One might be tempted to argue that this relatively light punishment is the best that can be accomplished given America’s decades-long experience with the “culture of death”, and that a return to the pre-Roe days wherein abortion was punished as murder will take a great deal of time.  This argument fails, however, when one examines pre-Roe statutes:  While these provisions frequently authorized punishments comparable to those authorized by the South Dakota abortion law, they rarely (if ever) punished abortion as murder.  Consider that, in 1961:

  • In 25 out of the 51 states (including DC), the maximum penalty for criminal abortion was similar to the aforementioned South Dakota ban:  I.e., maximum of 5 years in prison, and/or fine of no more than $10,000.[10]
  • In 14 other states, the maximum penalty was 10 years’ imprisonment.[11]
  • Nine jurisdictions deemed abortion “manslaughter”,[12] but classified it as “murder” only if it resulted in the death of the mother.  Eight others also deemed abortion “murder” when the mother died as a result of the procedure.[13]

It would appear that there was no pre-Roe consensus equating abortion with “murder”.  On the contrary, while abortion was indeed a crime, it was a crime that was only occasionally deemed “manslaughter”, let alone murder.  That many states punished abortion as murder only when the procedure resulted in the death of the mother also argues powerfully that the law did not equate abortion & murder.

The degree of punishment assigned to crimes isn’t solely about deterrence & crime prevention; it also has important symbolic value.  If crimes against a certain class of persons (Class B) carry lesser penalties than identical crimes persons from Class A, such lesser penalties send a strong signal to the populace at large that those in Class B are second-class citizens (de facto if not necessarily de jure) less valuable than those in Class A.  By way of illustration, consider this hypothetical:  we revise the criminal law so that anyone who kills a white man gets automatic execution; but anyone who kills a black man gets no more than a month’s jail time & a $100 fine.  Would this not send a not-so-subtle message about the relative worth of blacks vs. whites?

If all persons – born and unborn – are equally deserving of life, and of the protection of the law, then the law should reflect this fact.  If the law fails to do this – if it punishes some premeditated killings (e.g., of born human beings) more seriously than others (e.g., of unborn human beings) – it sends an important (albeit implicit) message:  That the lives of some people (e.g., the unborn) are less important than the lives of others (e.g., the born).  Contrariwise, if abortion is punished less harshly than first & second-degree murder, the clear implication is that the unborn are merely second-class citizens, whose lives are less important than other people’s.

In light of the above, I find myself wondering about the “end state” sought by prolifers:  Is their ultimate goal a world wherein abortion really is treated like premeditated murder (i.e., a high-level felony, with women who procure abortions being prosecuted for conspiracy to commit murder)?  Or are statutes like the South Dakota abortion ban the end that they seek, and not merely a way station?  And if the latter is so, how do prolifers reconcile such statutes’ relegation of the unborn to second-class citizenship with the prolife argument that, because the unborn are “persons” equally-deserving of rights, abortion is therefore morally equivalent to premeditated murder?


[1] South Dakota Women’s Health and Human Life Protection Act, H.B. 1215, 81st Legislative Session (SD 2006), available at http://news.findlaw.com/cnn/docs//abortion/sdabortionlaw06.html.

[2] South Dakota bans most abortions, CNN, Mar. 6, 2006, available at http://www.cnn.com/2006/POLITICS/03/06/sd.abortion/index.html.

[3] Monica Davey, South Dakotans Reject Sweeping Abortion Ban, N.Y. TIMES, Nov. 8, 2006, available at http://www.nytimes.com/2006/11/08/us/politics/08issues.html.

[4] South Dakota Women’s Health and Human Life Protection Act, H.B. 1215, 81st Legislative Session, §2 (SD 2006), available at http://news.findlaw.com/cnn/docs//abortion/sdabortionlaw06.html (emphasis added).  I am indebted to Douglas A. Berman for originally drawing attention to this provision.  See Douglas A. Berman, Sentencing provisions of South Dakota’s new abortion ban, SENTENCING LAW AND POLICY, Mar. 7, 2006, available at http://sentencing.typepad.com/sentencing_law_and_policy/2006/03/sentencing_prov.html.

[5] See, e.g., Stephanie D. Moussalli, Abortion on Second Thought, FIRST THINGS, Dec. 1991, at 12, available at http://www.firstthings.com/article/2007/12/003-abortion-on-second-thought-5.

[6] Regarding the classification of felonies in South Dakota, see S.D. CODIFIED LAWS § 22-6-1 (2009), available at http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=22-6-1 (listing penalties associated with various classes of felonies).  Though South Dakota does criminalize “fetal homicide” as a Class  B felony, this provision specifically excludes “acts…committed during any abortion, lawful or unlawful, to which the pregnant woman consented.”  See S.D. CODIFIED LAWS § 22-6-1.1 (2009), available at http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=22-16-1.1.

[7] S.D. CODIFIED LAWS § 22-16-12 (2009), available at http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=22-16-12 (“Murder in the first degree is a Class A felony. Murder in the second degree is a Class B felony.”).

[8] S.D. CODIFIED LAWS § 22-16-15 (2009), available at http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=22-16-15 (“Manslaughter in the first degree is a Class C felony.”); also S.D. CODIFIED LAWS § 22-16-20 (2009), available at http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=22-16-20 (“Manslaughter in the second degree is a Class 4 felony.”).

[9] S.D. CODIFIED LAWS § 22-16-41 (2009), available at http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=22-16-41 (“Vehicular homicide is a Class 3 felony.”).

[10] These were Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Iowa, Maine, Maryland, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, & Washington.  See 14 ALA. CODE §9 (1940), reprinted in Eugene Quay, Justifiable Abortion – Medical and Legal Foundations, 49 GEO. L.J. 395, 447 (1961); ARIZ. REV. STAT. ANN. § 13-211 (1956), reprinted in Quay, supra, at 448; ARK. STAT. ANN. §41-301 (1947), reprinted in Quay, supra, at 449; CAL. PEN. CODE § 274 (1961), reprinted in Quay, supra, at 450; COLO. REV. STAT. ANN. § 40-2-23 (1953), reprinted in Quay, supra, at 452; CONN. GEN. STAT. REV. §53-29 (1958), reprinted in Quay, supra, at 453; 11 DEL. CODE ANN. §301 (1953), reprinted in Quay, supra, at 455; HAWAII REV. LAWS § 309-3 (1955), reprinted in Quay, supra, at 463; IDAHO CODE ANN. § 18-601, reprinted in Quay, supra, at 464; IOWA CODE 701.1 (1946), reprinted in Quay, supra, at 470; ME. REV. STAT. ANN. § 9 (1954), reprinted in Quay, supra, at 477; MD. ANN. CODE, ART. 27, § 3 (1957), reprinted in Quay, supra, at 478; MINN. STAT. ANN. § 617.18 (1953), reprinted in Quay, supra, at 485-486; MO. REV. STAT. § 599.100 (1949), reprinted in Quay, supra, at 489; MONT. REV. CODE ANN. § 94-401 (1947), reprinted in Quay, supra, at 490; NEV. REV. STAT. § 200.120 (1959), reprinted in Quay, supra, at 492; N.H. REV. STAT. ANN. § 595:12 (1955), reprinted in Quay, supra, at 493; N.M. STAT. ANN. § 40-3-1 (1953), reprinted in Quay, supra, at 498; N.Y. PEN. LAW. § 80 (1961), reprinted in Quay, supra, at 498; N.D. REV. CODE § 12-2501 (1943), reprinted in Quay, supra, at 503; 21 OKLA. STAT. ANN. § 861 (1958), reprinted in Quay, supra, at 504; S.D. CODE § 13.3101 (1960), reprinted in Quay, supra, at 512; TENN. CODE ANN. § 39-301 (1955), reprinted in Quay, supra, at 513; TEX. PEN. CODE ANN. ART. 1191 (1960) (), reprinted in Quay, supra, at 513-514; WASH. REV. CODE § 9.02.010 (1951), reprinted in Quay, supra, at 517.

[11] These were DC, Illinois, Louisiana, Massachusetts, Mississippi, Nebraska, North Carolina, Ohio, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, & West Virginia.  See D.C. CODE ANN. § 22-201 (1960), reprinted in Quay, supra note 10, at 456; ILL. REV. STAT. § 3 (1959), reprinted in Quay, supra note 10, at 465; LA. REV. STAT. ANN. § 14:87 (1950), reprinted in Quay, supra note 10, at 476; MASS. GEN LAWS ANN. §19 (1959), reprinted in Quay, supra note 10, at 480; MISS. CODE ANN. § 223 (1956), reprinted in Quay, supra note 10, at 488; NEB. REV. STAT. § 28-404 (1956), reprinted in Quay, supra note 10, at 491; N.C. GEN. STAT. § 14-44 (1953), reprinted in Quay, supra note 10, at 502; OHIO REV. CODE ANN. § 2901.16 (1961), reprinted in Quay, supra note 10, at 504; 18 PA. STAT. ANN. § 4719 (1945), reprinted in Quay, supra note 10, at 506; R.I. GEN. LAWS. ANN. § 11-3-1 (1956), reprinted in Quay, supra note 10, at 509; UTAH CODE ANN. § 76-2-1 (1953), reprinted in Quay, supra note 10, at 514; 13 VT. STAT. ANN. § 101 (1959), reprinted in Quay, supra note 10, at 515; VA. CODE ANN. § 18.1-62 (1960), reprinted in Quay, supra note 10, at 516; W. VA. CODE ANN. § 5923 (1955), reprinted in Quay, supra note 10, at 518.

[12] These were Alaska, Florida, Kansas, Michigan, Mississippi, Missouri, Nevada, New York, North Dakota, Oklahoma, & Oregon.  See ALASKA COMP. LAWS ANN. § 65-4-6 (1949), reprinted in Quay, supra note 10, at 448; FLA. STAT. ANN. § 782.09 (1944), reprinted in Quay, supra note 10, at 457; KAN. GEN. STAT. ANN. § 21-409 (1959), reprinted in Quay, supra note 10, at 473; MICH. STAT. ANN. § 28.554 (1954), reprinted in Quay, supra note 10, at 482; MISS. CODE ANN. § 2222 (1956), reprinted in Quay, supra note 10, at 488; MO. REV. STAT. § 559.090 (1949), reprinted in Quay, supra note 10, at 489;  NEV. REV. STAT. § 200.210 (1959), reprinted in Quay, supra note 10, at 492; N.Y. PEN. LAW. § 1050 (1961), reprinted in Quay, supra note 10, at 499; N.D. REV. CODE § 12-2502 (1943), reprinted in Quay, supra note 10, at 503; 21 OKLA. STAT. ANN. § 714 (1958), reprinted in Quay, supra note 10, at 504; ORE. REV. STAT. § 163.060 (1959), reprinted in Quay, supra note 10, at 505.

[13] These were Colorado, DC, Georgia, Illinois, Kentucky, Mississippi, New Hampshire, & New Mexico.  See COLO. REV. STAT. ANN. § 40-2-23 (1953), reprinted in Quay, supra, at 452; D.C. CODE ANN. § 22-201 (1960), reprinted in Quay, supra note 10, at 456; GA. CODE ANN. 26-1103 (1933), reprinted in Quay, supra note 10, at 459; ILL. REV. STAT. § 3 (1959), reprinted in Quay, supra note 10, at 465; KY. REV. STAT. ANN. 435.040 (1955), reprinted in Quay, supra note 10, at 474; MISS. CODE ANN. § 2223 (1956), reprinted in Quay, supra note 10, at 488; N.H. REV. STAT. ANN. § 585:14 (1955), reprinted in Quay, supra, at 494; N.M. STAT. ANN. § 40-3-2 (1953), reprinted in Quay, supra, at 498.

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