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Charlotte Lozier Institute

Phone: 202-223-8073
Fax: 571-312-0544

2776 S. Arlington Mill Dr.
#803
Arlington, VA 22206

Life & the LawAbortion

Pro-Life Laws Exempt Women from Prosecution: An Analysis of Abortion Statutes in 27 States

This is Issue 98 of the On Point Series.

Executive Summary

  • A legal analysis of states’ current laws, statutes, and opinions demonstrates that women will not be prosecuted in their state for seeking or obtaining abortion.
  • Most state laws regulating or prohibiting abortion contain explicit carve outs exempting women from criminal or civil liability, others exempt women implicitly by specifically targeting physicians or others who perform abortions rather than the women who undergo them.
  • The results of this analysis are in accordance with the mainstream pro-life movement as well as older state laws regulating or prohibiting abortion, both of which have consistently sought to exempt women from prosecution for abortion.

 

In May of 2022, in the aftermath of the Supreme Court opinion leak that would eventually become Dobbs v. Jackson Women’s Health, the heads of more than 50 national and state pro-life organizations sent an open letter to state lawmakers reminding them that both mothers and babies are victims of the abortion industry. The letter says in no uncertain terms, “We state unequivocally that we do not support any measure seeking to criminalize or punish women and we stand firmly opposed to include such penalties in legislation.”

Despite this letter and ample evidence to the contrary dating back decades, since Dobbs was decided there have been multiple claims that mothers of aborted unborn children will be prosecuted under newly enacted or reestablished state criminal abortion statutes. This, however, is patently untrue. Some states have no criminal abortion statutes at all, and among those that do, only two (Nevada and Oklahoma) appear to have statutes allowing the prosecution of mothers, while a few others can only disingenuously be interpreted to do the same. However, even the ambiguous Oklahoma statute has been interpreted by the state’s Attorney General as not permitting women to be held criminally liable.[1]

The majority of the pro-life movement has rejected the idea of prosecuting women for abortion. Nevertheless, there have been a handful of prosecutions over the years of individuals who have either attempted to self-abort their children, or who have helped others to do so. While this has often been characterized as “prosecution for abortion,” that is inaccurate as in such cases the individuals are not being prosecuted for abortion itself. Instead, they are prosecuted for things like attempting to get pregnant women to take abortion pills without their consent, improper burial of human remains (burial is regulated for a reason), performing abortions without a license, and so on.

This paper reviews state criminal abortion statutes, examining either explicit or implied prosecutorial exemptions for mothers. Statutes vary state by state in specificity and in what types of abortions may be prohibited. States that offer little to no protection for the unborn or their mothers have been left out of the analysis. Only states with relatively substantial protections for the unborn such as gestational limits, or regulations on abortion, have been included. Ohio, which passed a referendum negating their abortion laws in November 2023, has also been omitted.

Below are the analyses and relevant interpretations of each individual state’s codes as they relate to prosecutorial exemptions for mothers.

Alabama

The State of Alabama broadly prohibits abortion and provides plaintiffs with several causes of action against physicians who perform illegal abortions. These laws contain exemptions for women upon whom the abortions were performed.

Code of Ala. § 26-23H-5, Alabama’s most recently enacted abortion law (its so-called “trigger ban”), states that “[n]o woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable. Furthermore, no physician confirming the serious health risk to the child’s mother shall be criminally or civilly liable for those actions.”

This has been the official policy of the state of Alabama since 1997 when the state prohibited partial birth abortions, specifically penalizing physicians in Code of Ala. § 26-23-3, and explicitly exempting mothers in Code of Ala. § 26-23-6.

Arizona

The state’s 15-week limit specifies in A.R.S. § 36-2324(B) that “[a] pregnant woman on whom an abortion is performed, induced or attempted in violation of section 36-2322 may not be prosecuted for conspiracy to commit any violation of this article.” Similarly, Arizona’s sex, race, and disability-selective abortion prohibition, A.R.S. § 13-3603.02(F), states: “A woman on whom a sex-selection or race-selection abortion or an abortion because of a child’s genetic abnormality is performed is not subject to criminal prosecution or civil liability for any violation of this section or for a conspiracy to violate this section.”

Another, far older, section of code, A.R.S. § 13-3603, prohibits any person from providing an abortion, and while it does not specifically exempt women from prosecution, it penalizes only those who act upon women to cause an abortion, implicitly exempting women from prosecution.

Arkansas

Arkansas, which prohibits abortion in all cases except to save the mother’s life, nevertheless prohibits “the charging or conviction of a woman with any criminal offense in the death of her own unborn child” in The Arkansas Unborn Child Protection Act, A.C.A. § 5-61-404(c)(1). This has been standard policy in Arkansas since at least 1970, when the state supreme court found in Heath v. State that a statute did not allow for the woman seeking abortion to be considered an accomplice to the abortionist performing the abortion. Also in 1983, A.C.A. § 5-61-101(c) prohibited abortion by anyone other than a licensed physician, and specified that “[t]his section does not allow the charging or conviction of a woman with any criminal offense in the death of her own unborn child in utero.”

Arkansas also has the Arkansas Human Life Protection Act, A.C.A. § 5-61-301 – A.C.A. § 5-61-304, which is extremely similar to the Arkansas Unborn Child Protection Act but was enacted a few years earlier. It contains the same explicit carve out as the latter.

Florida

Florida’s maternal protections are not explicit but implied, relying on penalties for abortionists. Additionally, Florida’s supreme court held in the 1997 case State v. Ashley that Florida law, in accordance with common law precedent, does not hold a woman criminally liable for abortion unless a statute is “explicit and clear” that she should be. Thus, there is a presumption that women will be immune to prosecution unless stated otherwise.

Florida’s informed consent statute, Fla. Stat. § 390.0111(3)(c), specifically penalizes the physician, implying that a pregnant patient of that physician cannot be prosecuted. Florida’s partial-birth abortion prohibition, Fla. Stat. § 782.34, penalizes “any person who intentionally kills a living fetus while that fetus is partially born” and, later in the statute, Fla. Stat. § 782.36(1) exempts the patient from prosecution.

Florida’s 15-week limit, Fla. Stat. § 390.0111, requires actions of the physician although the penalty provision does say “any person who willfully performs, or actively participates in” an abortion is subject to prosecution. This might be interpreted to include the mother, but such an interpretation would not be consistent with the rest of the code, nor would it be consistent with State v. Ashley. The 15-week limit could be replaced by a heartbeat law (6-week limit) in the same section of code, but as of the publication of this article, both are awaiting pending litigation.

Georgia

The state of Georgia includes several protections for unborn children in its code and ensures immunity for mothers as well. The state’s criminal abortion statute, O.C.G.A. § 16-12-140, prohibits performing abortions on or providing substances “to any woman,” implying that the individuals penalized would not include the woman. Additionally, O.C.G.A. § 16-5-80(f), relating to the more general crime of feticide, states, “Nothing in this Code section shall be construed to permit the prosecution of: (1) Any person for conduct relating to an abortion for which the consent of the pregnant woman, or person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law; (2) Any person for any medical treatment of the pregnant woman or her unborn child; or (3) Any woman with respect to her unborn child.”

The most relevant section of code, Georgia’s current heartbeat statute (O.C.G.A. § 16-12-141), includes an affirmative defense to prosecution if “[a] woman sought an abortion because she reasonably believed that an abortion was the only way to prevent a medical emergency.” This might be read as indicating that she could be prosecuted for violation otherwise; however, the woman upon whom an abortion is performed is also listed as being able to recover damages in a civil action in the same section of code, so this interpretation is unlikely.

Idaho

Idaho’s most recently enacted abortion statute, Idaho Code § 18-622, explicitly exempts women from prosecution. The code states, “Nothing in this section shall be construed to subject a pregnant woman on whom any abortion is performed or attempted to any criminal conviction and penalty.” Idaho is, however, one of two states with another, older section of code explicitly permitting prosecution of mothers for their abortion. This older statute, Idaho Code § 18-606, added in 1973, remains in the code, though in 2013 it was ruled unconstitutional by the Ninth Circuit. Moreover, it was plausibly intended to be superseded by §18-622, which exempts women from prosecution, and so is ineffective regardless.

Other earlier Idaho abortion statutes also contained prosecutorial exemptions for women (see, for ex., Idaho Code § 18-507 and Idaho Code § 18-508 (3)).

Indiana

Indiana’s current abortion law is contained in Burns Ind. Code Ann. § 16-34-2. The state has a number of protections for unborn children while ensuring mothers are not penalized. Indiana’s parental consent statute, Burns Ind. Code Ann. § 16-34-2-4 (l), assesses penalties against an individual who pretends to be an unemancipated minor’s parent or guardian for the purposes of helping them to obtain an abortion without parental consent. Indiana’s partial-birth abortion statute, Burns Ind. Code Ann. § 16-34-2-7 (d), specifically exempts the mother from prosecution, as does the dismemberment abortion statute, Burns Ind. Code Ann. § 16-34-2-8 (a).

Likewise, Indiana’s sex, race, and disability selection abortion statute, Burns Ind. Code Ann. § 16-34-4-9 (b), specifically exempts the mother from prosecution or civil actions. Mothers are also exempt from prosecution in Indiana’s sentence enhancement in felony cases for causing termination of human pregnancy, Burns Ind. Code Ann. § 35-50-2-16(a).

Iowa

Iowa has a mix of explicit maternal protections and penalties for abortionists in its codes. Iowa’s partial-birth abortion statute, Iowa Code § 707.8A(4-7), specifically exempts mothers from prosecution, as does the section of code on civil actions and penalties, Iowa Code § 146B.3(9). The statute requiring prerequisites for abortion, such as a 24-hour waiting period and ultrasound, Iowa Code § 146A.1(4), also explicitly exempts mothers from prosecution. Likewise, the fetal heartbeat statute currently enjoined by the state supreme court, HF 732, exempts mothers from liability.

Kansas

The Kansas Statutes have several exceptions protecting mothers from prosecution. Codes K.S.A. § 65-6724(e) (pain-capable unborn child protection), K.S.A. § 65-6726(c) (prohibition of sex-selection abortion), K.S.A. § 65-6743(b) (prohibition of dismemberment abortion), and K.S.A. § 65-6703(e) (viability) all include language specifically exempting women from prosecution. Additionally, K.S.A. § 65-6721(d)(e), which sets out plaintiffs and methods for civil relief for partial birth abortion, has an exemption protecting women from civil prosecution.

Kentucky

Kentucky’s most current abortion law, KRS § 311.772(5), explicitly states that “[n]othing in this section may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.” Other, earlier portions of Kentucky’s code also include specific exemptions for a pregnant woman upon whom an abortion is performed. These include its heartbeat statute (KRS § 311.7705(4)), 15-week limit (KRS § 311.782(6)), partial-birth abortion statute (KRS § 311.990(11)(c)), race, sex and disability selection abortion statute (KRS § 311.731(7)), and abortion on minors statute (KRS § 311.732(12)).

Louisiana

Louisiana’s abortion statutes include a number of specific prosecutorial exemptions for mothers. Such exemptions appear in the state’s most current, blanket abortion prohibition (La. R.S. § 40:1061(H)), its dismemberment abortion prohibition (La. R.S. § 40:1061.1.3(C)(2)), late-term abortion prohibition (La. R.S. § 14:87.8(C)), prohibition of abortions by an unlicensed physician (La. R.S. § 14:87.10(D)(2)), and restriction on chemical abortion (La. R.S. § 40:962.2(E)), among others.

Mississippi

Mississippi law has a mix of maternal protections and penalties for abortionists. Mississippi’s overall prohibition on abortion, Miss. Code Ann. § 41-41-45(4), specifically exempts the mother from prosecution. Earlier provisions of Mississippi law contain similar exemptions for mothers, such as the state’s Women’s Health Protection and Preborn Pain Act, Miss. Code Ann. § 41-41-145(4), which includes a provision stating that the statute “may not be construed to authorize the prosecution of or a cause of action to be brought against a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of Sections 41-41-131 through 41-41-145.”

Likewise, Miss. Code Ann. § 41-41-111(2), another, earlier code regulating chemical abortion pills, exempts the mother from criminal penalties. Other sections of Mississippi’s law code contain similar civil or criminal exemptions, whether implicit or explicit.

Missouri

Missouri’s Right to Life of the Unborn Child Act (§ 188.017(2) R.S.Mo.), which went into effect when Roe v. Wade was overturned, prohibits all abortions except for medical emergencies and contains an explicit prosecutorial exemption for mothers. Other, earlier sections of code, such as Missouri’s 14-week limit, § 188.057 R.S.Mo., 18-week limit, § 188.058 R.S.Mo., and viability statute, § 188.030 R.S.Mo.(7), also contain carve outs protecting mothers from prosecution.

Montana

Montana classifies unlawful abortion after viability as homicide under 50-20-112, MCA, but includes a carve out for mothers upon whom an abortion has been performed. The partial-birth abortion statute, 50-20-401, MCA, also includes a carve out provision exempting mothers from prosecution. Similarly, Montana’s statute regulating chemical abortion, 50-20-711, MCA, exempts mothers from criminal penalties (though this law is currently enjoined). The Pain-Capable Unborn Child Protection Act (50-20-603, MCA), passed in 2021 but as of the publication of this article is ineffective due to legal challenges, penalizes “a person” who violates the section but then includes a reference to 50-20-112, MCA, which specifically exempts mothers.

Nebraska

Nebraska’s most recently enacted abortion law, the Preborn Child Protection Act, prohibits abortion in most cases after 12 weeks, and specifies in Sec. 6 that“[n]o woman upon whom an abortion is attempted, induced, or performed shall be liable for a violation of [this] Act.” This is longstanding Nebraska policy with multiple prior laws explicitly exempting mothers from liability, including the state’s pain-capable unborn children statute (R.R.S. Neb. § 28-3,108 and R.R.S. Neb. § 28-3,109), dismemberment abortion statute (R.R.S. Neb. § 28-347), and partial-birth abortion statute (R.R.S. Neb. § 28-328).

North Carolina

The state of North Carolina recently enacted a 12-week limit (SB 20) in concurrence with a partial-birth abortion ban, N.C. Gen. Stat. § 90-21.81A. In its section on civil remedies, this new law permits the woman upon whom an abortion was performed to recover damages, implicitly exempting her from civil liability. The law goes on to single out physicians and other licensed healthcare providers as those “subject to discipline” for abortions (§ 90-21.88) and clarifies explicitly that “[n]o pregnant woman seeking to obtain an abortion in accordance with this Article shall be subject to professional discipline for attempting to do so” (§ 90-21.88A).

Another new section of code, N.C. Gen. Stat. § 90-21.142, requires “any health care practitioner present at the time [a child upon whom an abortion was attempted] is born alive” to proactively preserve the life of the child, and another section, N.C. Gen. Stat. § 90-21.145, classifies “any person who intentionally performs or attempts to perform an overt act that kills a child born alive” as a murderer. This section of code specifies, however, that “the mother of a child born alive may not be prosecuted for a violation of” this law (N.C. Gen. Stat. § 90-21.144).

North Dakota

North Dakota recently passed Senate Bill 2150, which prohibits abortion in most cases but exempts women upon whom abortions are performed from criminal liability. The law says: “It is a class C felony for a person, other than the pregnant female upon whom the abortion was performed, to perform an abortion.”

Oklahoma

Oklahoma’s primary law prohibiting abortion is found in code 21 Okl. St. § 21-861. Its language criminalizes any individual “who administers to any woman, or who prescribes for any woman, or advises or procures any woman to take any medicine, drug or substance, or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman” for punishment, thus implying that the woman undergoing the abortion would not be subject to such penalties. 21 Okl. St. § 21-691 also exempts mothers from prosecution for undergoing an abortion unless she has committed a crime that caused the death of the unborn child.

Oklahoma prohibits self-induced abortions under 63 Okl. St. § 1-733, but this section does not have a penalty attached to it, so based on the text alone one might think it is unclear if a woman who engaged in a self-induced abortion could be penalized. However, Oklahoma Attorney General Gentner Drummond published an opinion on whether this or any other section of Oklahoma code could be interpreted to hold women seeking or undergoing abortions criminally liable, in which he responded with a definitive, “The answer … is no.” Oklahoma laws that do contain explicit exemptions for mothers (some of which are older) include the state’s chemical abortion statutes (63 Okl. St. § 1-756.10(C), and 63 Okl. St. § 1-729a), pain-capable unborn child protection statute (63 Okl. St. § 1-745.7), Unborn Child Pain Awareness/Prevention Act (63 Okl. St. § 1-738.14), dismemberment abortion statute (63 Okl. St. § 1-737.9), sex and race discrimination abortion prohibition (63 Okl. St. § 1-731.2), fetal heartbeat informed consent statute (63 Okl. St. § 1-745.16), and physician presence for abortion-inducing drugs statute (63 Okl. St. § 1-729.2).

Pennsylvania

Pennsylvania’s Abortion Control Act, which includes provisions for medical consultation (18 Pa.C.S. § 3204), a 24-week limit (18 Pa.C.S. § 3211), and infanticide/born-alive protections (18 Pa.C.S. § 3212) also includes a provision, 18 Pa.C.S. § 3218, exempting mothers from prosecution or liability.

South Carolina

South Carolina prohibits abortion, with some exceptions, after a fetal heartbeat can be detected (S.C. Code Ann. § 44-41-610). It explicitly exempts mothers from prosecution in S.C. Code Ann. § 44-41-670, stating that “[a] pregnant woman on whom an abortion is performed or induced in violation of this article may not be criminally prosecuted for violating any of the provisions of this article.”

The law was upheld by the South Carolina Supreme Court and has been in effect since August 2023.

An earlier partial-birth abortion ban, S.C. Code Ann. § 44-41-85, also includes a specific exemption for mothers.

South Dakota

South Dakota’s law limiting abortion to only those cases in which a mother’s life is threatened, S.D. Codified Laws § 22-17-5.1, explicitly exempts women from criminal liability, stating in § 22-17-5.2 that “[a] female who undergoes an unlawful abortion … may not be held criminally liable for the abortion.”

Other sections of South Dakota code containing specific exemptions for mothers include the state’s protections for children born alive during abortions (S.D. Codified Laws § 34-23A-16.2), partial-birth abortion prohibition (S.D. Codified Laws § 34-23A-31), sex-selective abortion prohibition (S.D. Codified Laws § 34-23A-64), pain-capable abortion prohibition (S.D. Codified Laws § 34-23A-69), and Down Syndrome selective abortion prohibition (S.D. Codified Laws § 34-23A-90).

Tennessee

Tennessee’s criminal abortion statute, Tenn. Code Ann. § 39-15-213, exempts mothers from prosecution in §39-15-213(e).

A variety of other Tennessee statutes also have explicit exemptions for mothers. These include  Tennessee’s limit on abortion at 6 weeks and later (Tenn. Code Ann. § 39-15-216), its race, sex, and disability abortion prohibition statute (Tenn. Code Ann. § 39-15-217), and its chemical abortion and abortion pill reversal statute (Tenn. Code Ann. § 39-15-218).

Texas

Texas is another state with extensive protections for unborn children and a mix of maternal exemptions and prosecution of abortionists. The state’s current law, Tex. Health & Safety Code 170A, prohibits all abortions except to preserve the mother’s life or a major bodily function. This statute explicitly exempts women from prosecution in Sec. 170A.003.

Texas’ previous viability statute, Tex. Health & Safety Code § 170.002, prohibits “a person” from performing an abortion “on a woman who is pregnant,” and an explicit exemption for mothers occurs later in the chapter at Tex. Health & Safety Code § 170A.003. Texas’ chemical abortion statute, Tex. Health & Safety Code § 171.063, requires actions of and penalizes abortionists, and specifically exempts women under § 171.064 and § 171.065.

Mothers are similarly exempt from prosecution in other, earlier sections of Texas code (see, for ex., Tex. Health & Safety Code § 171.048, § 171.106, and § 171.206).

Utah

Utah’s 18-week limit, Utah Code Ann. § 76-7-302, penalizes “the person [who] intentionally causes the death of an unborn child by performing an abortion of the unborn child in violation of” that statute. The penalty section, Utah Code Ann. § 76-7-314.5, explicitly exempts the mother from prosecution. This section of code also explicitly exempts the mother from criminal liability, stating that “[a] woman is not criminally liable for … seeking to obtain, or obtaining, an abortion that is permitted by this part” and that she is also not liable for “a physician’s failure to comply with [these statutes].” The state’s “classification” statute in the same chapter (Utah Code Ann. § 76-7-314) specifies penalties for physicians and health care facilities.

Utah code has a number of other, earlier sections that specifically penalize the physician, thereby implicitly exempting mothers. This includes the state’s partial-birth abortion prohibition (Utah Code Ann. § 76-7-326).

West Virginia

West Virginia has consistently exempted mothers from prosecution. In the state’s Unborn Child Protection Act, which prohibits abortions in most cases from conception and was enacted in 2022, women upon whom abortions are performed are explicitly exempt from criminal liability in § 16-2R-8(e).

Other criminal abortion statutes with specific exemptions for mothers include West Virginia’s pain-capable abortion prohibition (W. Va. Code § 16-2M-6), the Unborn Child Protection from Dismemberment Abortion Act (W. Va. Code § 16-2O-1), the Born-Alive Abortion Survivors Protection Act (W. Va. Code § 16-2P-1), and disability-selective abortion ban (W. Va. Code § 16-2Q-1).

Wisconsin

The status of abortion law in Wisconsin is in flux pending ongoing litigation regarding the state’s 1849 law that went into effect (though was subsequently blocked) after Roe was overturned. This law, Wis. Stat. § 940.04, prohibits abortion by “any person, other than the mother.” That mothers are exempt from prosecution is reiterated later in Wis. Stat. § 940.13, which states that “[n]o fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.”

Other sections of code with exemptions for mothers include Wisconsin’s chemical abortion statute (Wis. Stat. § 253.105), pain-capable abortion prohibition (Wis. Stat. § 253.107), and viability statute (Wis. Stat. § 940.15).

While the state’s partial birth abortion ban, Wis. Stat. § 940.16, does not include this same specific exemption, the nature of the procedure as described in the definition of “partial-birth abortion” would indicate that it is not a procedure a woman can self-perform. The definition states that a partial-birth abortion is “an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child” (Wis. Stat. § 940.16(b)).

Wyoming

The status of abortion law in Wyoming is also in flux pending litigation. The state has an abortion prohibition that went into effect in March of 2023, Wyo. Stat. § 35-6-123, but which was subsequently enjoined by a district court judge. Its penalty section, Wyo. Stat. § 35-6-125, includes a specific exemption from prosecution for mothers. Similarly, the state’s chemical abortion prohibition, Wyo. Stat. § 35-6-139, which was set to go into effect on July 1, 2023 but was blocked before this could happen, includes a nearly identical exemption for mothers.

 

This analysis shows that claims that women will be prosecuted under pro-life laws are baseless. Pro-life laws consistently focus on abortionists, as well as those who use abortion to make money or commit crimes. This trend is not new, as the variety of older state laws exempting women from prosecution mentioned above show. In addition, it is well established that states with pro-life laws allow women to receive treatment for pregnancy-related medical emergencies. The mainstream pro-life movement continues to see abortion as harmful to women, and thus supports women’s interests across the board, including by exempting them from prosecution and civil liability.

 

Amanda Stirone Mansfield, J.D. is an associate scholar with the Charlotte Lozier Institute.


[1] The referred-to Nevada statute, NRS 200.220, penalizes women for self-managed abortions after 24 weeks of pregnancy. Discussion of Nevada abortion law has been omitted in this paper, however, due to the fact that the state has almost no legal protections for the unborn, and so does not meet the selection criteria for a state with substantial pro-life protections.

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