Trump Exposes the Fatal Flaw in the 'Pro-Life' Argument

Donald Trump and his wife Melania arrive at the Metropolitan Museum of Art Costume Institute Benefit, New York, May 7, 2012. The author suggests that the typical Republican position is that abortion, in most circumstances, is tantamount to homicide, because an embryo is a rights-bearing human being. Trump concluded that those guilty of homicide should be punished. Lucas Jackson/reuters

This article first appeared on the Justia site.

At the end of March, Donald Trump, fielding a question from Chris Matthews about abortion at an MSNBC Town Hall meeting, expressed his view that abortion should be banned and declared that women who obtain the procedure in violation of a ban ought to be punished.

In his words, "There has to be some form of punishment" for women.

Within hours, Trump had changed his mind, and his campaign issued the following statement: "The doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman," adding that "the woman is a victim in this case as is the life in her womb. My position has not changed. Like Ronald Reagan, I am pro-life with exceptions."

One can assume that this rapid change of heart likely reflected Trump's having in the interim learned the current Republican position on abortion. In this column, I will consider the potentially unassailable logic of the position that Trump initially took—the view that if abortion is a wrongful act of violence that should be banned, then it follows that women who undertake this wrongful act should be punished for doing so.

Katha Pollitt made an argument to this effect here. Yet whereas Pollitt's evident aim is simply to call out the pro-life movement for deception, I ask how someone might in good faith hold the commitments which the movement espouses.

Punishing Women for Abortion

As Franklin Foer argued persuasively in an article in Slate, Trump's words and actions provide strong evidence that he truly hates women. He regularly insults them and regards women generally as sex objects through which he can assert dominance over other men. He also considers women's bodily functions to be disgusting and thinks an unattractive female face is disqualifying for a presidential candidate.

In the past, Trump described himself as "very pro-choice," but that position quite possibly reflected his desire for access to an exit strategy should one of his conquests happen to become pregnant. As a Republican candidate for president right now, he has predictably joined the pro-life camp and repeatedly stated his opposition to abortion.

It was accordingly not surprising to hear that Donald Trump thought abortion should be banned. That was not news. The news was that Trump believed that women who violated the ban and obtained an abortion should be punished.

John Kasich was quick to stake out his own contrasting position on abortion that "of course, women shouldn't be punished." Ted Cruz joined the chorus against Trump and stated that "Of course we shouldn't be talking about punishing women; we should affirm their dignity and the incredible gift they have to bring life into the world."

Given the currently dominant view of abortion among pro-life Americans and the Republican party (i.e., that abortion should be illegal in most circumstances, but that women should not be punished for it), Trump's punitive attitude toward women who would terminate their pregnancies illegally made him once again look like a misogynist. Indeed, one might conclude that Trump would simply like to see women punished, given his feelings about them, regardless of whether they have had an abortion or not.

In any event, Trump was shooting from the hip when he spoke, saying what was on his mind without censorship, and what he said was that women who get abortions should be subject to criminal penalties. Only (presumably) after being schooled in what his position on abortion ought to be did Trump walk back his remarks and say that women who have abortions are victims and should not be punished.

Not Punishing Women for Abortion

If we resist the temptation to dwell exclusively on Trump's misogyny (a strong temptation, to be sure), we might view his unscripted remarks about abortion as exposing the illogic of the currently prevailing anti-abortion stance in this country. This stance is less obnoxious than its alternative, but it arguably makes very little sense.

Different pro-life/anti-abortion Republicans have slightly different views of the procedure, but to paint with a broad brush, the general position of the typical Republican politician is this: abortion, in most circumstances, is morally tantamount to homicide. This is because an embryo or a fetus is a fully entitled, rights-bearing, human being who has as much of a right to be free from violence as any other human being.

The fact that the human being in question is living inside another human being, a woman, does not give rise to any right on the part of the woman to object to its presence or to terminate her status as a living incubator. Ideally, in fact, with only a few carefully delineated exceptions (such as necessity to save the life of the mother and perhaps rape and incest as well), the law would effectively keep unhappily pregnant women pregnant against their will.

If this is one's view of abortion, then it would seem to follow logically that a woman who seeks to terminate her pregnancy by visiting an abortion provider is comparable to any other parent who seeks to terminate the life of her child by recruiting a third party: she would be guilty of some level of homicide, whether murder or manslaughter (a less culpable version of murder).

The abortion provider, in this analogy, would be like a paid assassin, so he or she would also be guilty of homicide. But importantly, neither one of the two characters in the drama would be innocent. How can someone who is purportedly paying a killer to end the life of a child be innocent? Absent extenuating circumstances, she couldn't be.

In some sense, then, Trump was—at least momentarily—like the wise child in the story, The Emperor's New Clothes, pointing out the obvious, that the emperor is naked (and that people who solicit crimes are ordinarily subject to criminal punishment).

We can imagine what might have been going through Trump's head as he spoke: "Well, I am supposed to be against abortion, to think of abortion as killing just like any other killing, so obviously the person who goes to have the killing done has to be punished for doing that, right?"

If there really were no morally relevant distinction between abortion and other killings of people, then Trump would have the better of this argument. And actually, a number of countries, such as El Salvador, do punish women themselves for having an abortion.

Paternalism or an Admission that Abortion Is Different

It seems logical, then, to assume that you would punish a woman once you have claimed that as a matter of morality and the proper state of the law, the woman in question has effectively hired another person to murder the woman's child.

Yet the pro-life movement in the United States (and elsewhere) shrinks from this implication of its view that abortion is murder like any other murder. Why and how, as a matter of coherent argument, is it able to do that?

The "why" part may be easier to answer. To avoid giving the impression that the anti-abortion movement is anti-woman, pro-life advocates may feel the need to exempt the pregnant woman herself from the punitive impact of holding that abortion is tantamount to murder. Insulating women who terminate their pregnancies from the moral and legal consequences of the pro-life position is thus appealing because it allows pro-life advocacy to assert that it is both "pro-life" and "pro-woman."

Excusing women from culpability for an abortion also provides a more welcoming home for those women who have terminated their own pregnancies but may be having second thoughts about that choice and may be interested in joining the pro-life movement.

For answering "how" pro-life advocates can logically avoid the punitive implications of their view of abortion, there are two possibilities. I would suggest that both of these possibilities play some role in giving coherence to the logically problematic juxtaposition of the views that, on the one hand, abortion is murder but, on the other hand, pregnant women who abort are innocent.

One possibility is paternalism. On this approach, pregnant women are vulnerable and compromised and therefore less able to make fully responsible choices than other adults. Given this diminished capacity and corresponding diminished responsibility, a pregnant woman who decides to terminate her pregnancy is a little like a child who carries out an otherwise criminal act: we do not necessarily attach criminal consequences to what she does.

Paternalism alone, however, would seem like a hard sell. For one thing, a pregnant abortion provider who performs an abortion on another woman would likely fall on the "provider" and therefore "murderer" side of the dividing line and, therefore, the status of being pregnant itself cannot be sufficient to divest a person of responsibility for murdering an unborn child.

For another, many women would find the idea behind paternalism offensive and insulting if articulated as such. Pregnant women think of themselves as just as capable of adult responsibilities as any other adult and not as people with diminished capacity.

This is where a second kind of argument comes in—the argument that a pregnant woman's relationship to the fetus or embryo with which she is pregnant is categorically distinct from the relationship of any other person with another, physically separate, person.

That is, the willingness to exempt pregnant women from criminal responsibility for abortion may reflect a view that, in its full expression, animates the feminist approach to abortion. It is that terminating one's pregnancy is not exclusively an act of violence against another but is also an assertion of one's interest in bodily integrity against an unwanted intrusion.

This is, for many people who are pro-choice, the reason that the law ought to protect the right of abortion: to do otherwise is to force a woman to be an incubator against her will. Making other people refrain from murder does not similarly inflict this kind of compelled bodily intrusion on those other people.

Of course, if one is pro-life, there can be no full-throated embrace of the position that abortion is simply an assertion of one's bodily integrity interest against an unwanted intrusion. Pro-life advocates regard abortion as unjustified homicide, notwithstanding the unique imposition that pregnancy places on a woman.

Because paternalism alone is insulting, and because a complete acceptance of pregnancy as a bodily intrusion is antithetical to the pro-life position, a more compelling pro-life story seeks to combine the two.

In the narrative that results, a woman who is pregnant is very vulnerable with respect to her relationship to the embryo or fetus growing inside her. Her natural inclination is to experience love and nurturance toward that being, but forces outside of her control (such as financial hardship or physical discomfort) may complicate her feelings. What she requires then is the support of a pro-life community that can help her reconcile her needs with those of her unborn baby.

In her compromised state, however, she might find herself contemplating abortion out of an understandable desperation. Abortion providers then come in as the "bad guys" who prey on that desperation and offer to "help" the desperate woman by killing her baby. Like the baby, in this narrative, the woman herself becomes a victim of abortion providers.

This narrative is less infantilizing of the pregnant woman than the pure paternalism narrative is, because it acknowledges the hardship of pregnancy for many women. Yet its acknowledgment is only partial, because it refuses to allow women to exit their circumstances but instead simply forgives them if they do so.

It posits that taking her pregnancy to term is virtually always in a woman's best interest and that abortion is accordingly a harm not only to the unborn but to their mothers as well. A woman's agency in choosing to have an abortion is accordingly diminished, denied, or at least ignored in the service of pursuing the real culprit: the abortion provider (and the pro-choice movement).


Having unpacked what I understand to be going on when the pro-life movement exonerates women for their own abortions, I have to admit to feeling some ambivalence. I am pro-choice, and I and Michael Dorf have recently published a book about abortion and animal rights, Beating Hearts: Abortion and Animal Rights, in which, among other things, we attempt to reconcile our pro-choice views on abortion with our ethical vegan views on all non-human animals (including humans).

I fully embrace the conception of an unwanted pregnancy as an enormous imposition on a woman's bodily integrity that she has the right to terminate. At the same time, I am committed to logical reason and therefore find the pro-life view that Trump expressed—seeking to punish women for abortion—more coherent than the pro-life view that exempts women from responsibility for what is posited as wrongdoing.

Yet there is something in me that appreciates the compromise that the American pro-life position represents, a compromise in which no woman who has an abortion need fear an arrest for her actions. As a relative matter, I certainly prefer this position to its more punitive alternative (as undesirable as the former is, from my perspective).

Thus, even as I recognize that Trump's original statement about abortion may hang together better logically (absent the intervention of paternalism and a partial concession to the pro-choice narrative), I am grateful that at least in the United States, pro-life advocates roundly condemned Trump for what he said and drove him to walk back his earlier words shortly after uttering them.

Sherry F. Colb , a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is available on Amazon.


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