A Pro-Life Attorney Explains Why Abortion Is Not Murder
(So Please Stop Saying It Is):
The Law of the Unborn
by Gerald R. Thompson*
Let’s look at one more aspect of scripture indicating that an unborn fetus is not a legal person, and therefore its premature destruction attributed to human causes is not murder.
When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman’s husband shall impose on him, and he shall pay as the judges determine. But if there is harm, then you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe. (Exo. 21:22-25).
Before you latch on to the phrase, her children come out, let’s check some other translations. In KJV, her fruit depart from her. In NASB and NKJV, she gives birth prematurely. In fact, the context is somewhat ambiguous as to whether the baby survives or not. I assume, because the birth is premature and both pre-natal and neonatal care were non-existent at the time this law was given, the baby would probably die as a result.
Whether the child lives or dies, and whether it has taken its first breath, is not at issue. In fact, no concern for the welfare of the child is indicated in this text whatsoever. When the scripture considers whether there is or is not any harm, it is only in relation to whether there is any injury to the woman. Sure, the woman was forced to give birth prematurely – but did she suffer any injury beyond that? Harm to the child is not at issue (the child is presumed dead).
The references to life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe seem to relate to the woman, not the child. A newborn child has no teeth. A child is not likely to be born with burns, open wounds or stripes. These injuries are more likely describing the woman who was struck, beaten or injured by another.
Now, if in the view of the laws of Israel (and since those laws came directly from God, we might as well say if in the view of God) the dead baby lying on the ground was a legal person, the whole matter would have been handled much differently. Because the Lex Talionis (life for life, eye for eye, tooth for tooth, etc.) would have required capital punishment for the offender if the baby died. If the baby was a legal person – a full human being – then the law would have required the life of the offender for the life of the child.
In other words, there would have been no gradations of punishment. Thus, in the actual law of murder in ancient Israel, there was no gradation of punishment, eye for eye, limb for limb, etc.
If anyone kills a person, the murderer shall be put to death on the evidence of witnesses. But no person shall be put to death on the testimony of one witness. Moreover, you shall accept no ransom for the life of a murderer, who is guilty of death, but he shall be put to death. (Num. 35:30-31).
So, if an unborn child forced out prematurely who never breathed the breath of life was, in fact, a person according to Israel’s law, then Num. 35 would have applied. Go straight to capital punishment, don’t accept any excuses, don’t apply any gradations of punishment. But that’s not what Exo. 21:22-25 says.
No, the only question in Exo. 21 is whether the woman died or suffered some other injury. And she could have suffered any possible type of injury to her person, depending on how the men were fighting and whether they were using any weapons.
Thus, in the eyes of the laws of Israel, the fetus was not a human being and was not protected by the law against murder absent taking the first breath. So why would anyone read other portions of scripture to come to an opposite conclusion? Is God divided in His opinion, or is He the author of confusion? I think not. Or would God have a different rule for nations today? Are Jewish fetuses essentially different from Gentile fetuses in the eyes of God?
Ok, enough theology. Now let’s consider some practical legal problems arising from the claim that abortion is murder. If it is true that abortion is murder, then necessarily the people performing any abortion are murderers. Say it with me – people who perform abortions are murderers. No, don’t flip-flop – stick to your guns. This is an unavoidable consequence.
Let’s just be rational and logical. If abortion is murder, then those who perform an abortion all need to be punished as murderers, and not as some lesser offense. The whole point of saying that abortion is murder is to underscore the seriousness of the offense, right? Don’t feel sorry for them – they are murderers. And we can’t exactly let murderers roam around freely in society, can we?
Or is the statement that abortion is murder intended to set up a double standard, so that abortionists are punished one way, and other murderers are punished another way? I sure hope not, because that would neither be reasonable, nor justifiable. If we’re going to say so-and-so is a murderer under the law, then punish them like any other murderer under the law. It’s only just and fair under the laws of both man and God.
So the doctors who perform abortions, and any other medical practitioners who perform abortions, should all be charged with the crime of murder, and tried and punished as murderers by the criminal justice system. This is required if abortion is murder.
Of course, the nurses and assistants to the person performing any abortion are all accessories before the fact. Which means the nurses and assistants are all murderers, too. OK, maybe we can knock it down to 2nd degree murder, but still – murder is murder. And people who commit murder are murderers.
But let’s not forget the women – the would-be mothers who are having an abortion. No one dragged them into an abortion clinic and forced them to have an abortion by coercion. No – it was either her idea, or her parent’s idea or her boyfriend or husband’s idea that she went along with. These women signed up for this gig, and hired a clinic to do a job – to kill her baby.
Which necessarily means every woman who gets an abortion is guilty of murder or conspiracy to commit murder. Conspiracy to commit murder is the same as hiring a hit man to murder somebody. Yes, that makes perfect sense – that’s exactly what these women are doing – hiring someone to kill their babies.
Don’t feel sorry for them, now. Don’t let your eye have pity, as the scripture says. (Deut. 19:13). If abortion is murder, then everyone who makes an agreement and pays or receives money to have the abortion done is conspiring to commit that murder. Don’t blame me for the natural, logical, and legal consequences of taking this position. Is that your position?
But wait, we’re not done yet. Now that we know who the murderers are, we need to provide for them to be punished. We’re not going to call them murderers, and then let them walk away free, or only pay a fine, right? Murder is murder. So, that gives us – as a society – a couple of basic options.
If you want to be strictly biblical – maybe you don’t, but let’s just pretend for a moment – then the only fitting, proper and just punishment is to execute the murderers. Yes, I’m talking about capital punishment. “Whoever sheds the blood of man, by man shall his blood be shed, for God made man in his own image.” (Gen. 9:6).
This verse, in case you didn’t know, is the institution of capital punishment by God for all mankind. It is only a small part of a covenant God made with Noah and all his descendants, forever. (Gen. 9:9). And you, my friend, are a descendant of Noah, whether you know it or not – because everyone alive today is a descendant of Noah. Other than Noah and his descendants, no one else survived the flood.
Now, abortion involves shedding blood, right? And that baby who was aborted is a human being (according to you), right? So biblically, legally, and covenantally, all human societies are required to execute all murderers. And everyone who helps perform, or makes an agreement to perform, an abortion is a murderer. So prosecute them all. Now. Convict them all. Now. Put them to death. Now. Right? Is this your argument? I’m just trying to help you see it through. I’m just taking the claim that abortion is murder and taking it to its inevitable biblical and logical conclusion. This is no time to doubt what God says about putting murderers to death. Don’t waffle on me here.
What’s that? Your church doesn’t teach that? And that’s not your personal belief? We need to show forgiveness? We need to show the love of Christ? That is no problem at all – we can witness to the murderers right up to the time they get the electric chair. Done and done.
You’re concerned about the disparate treatment of minorities in the application of capital punishment? Color me amazed. It sure is a good thing we have a backup plan. All we have to do is prosecute and punish all the murderers who conspire to abort and perform an abortion the same as any other murderer. Let them all rot in jail for the rest of their natural lives.
So let the abortionists all be prosecuted and punished like any other first degree murderer. Let their nurses and assistants be prosecuted and punished like any other accessory before the fact to murder. And let the women who get an abortion be prosecuted and punished like any other hit man for hire. It’s not abortion. It’s just plain old murder. That will work won’t it? No need to drag God into the conversation about punishments.
That’s justice, right? The punishment fits the crime. If abortion is murder, and murderers should be punished as murderers, then how can anyone argue for a different result? Glad to see we are in agreement. Or do you actually think that people can say abortion is murder, without facing the logical and legal consequences of that statement?
There Is No Need To Overturn Roe v. Wade
But, let’s take it one step further. If in fact abortion is murder, then who cares about Roe v. Wade and the possibility of overturning it? Why should anyone in their right mind care about some legislature passing a new law regulating, prohibiting, defining or punishing abortion – er, excuse me, murder?
We already have laws on the books, valid and upheld in every court of the land, against murder. Laws against murder in every state, in the District of Columbia, etc. Just Use Them. Just Do It. If abortion truly is murder, then let’s just prosecute every abortionist in America under the murder statutes. If abortion truly is murder, then let’s just prosecute every woman who gets an abortion for conspiracy to commit murder under existing laws. Gosh, it’s so simple, why hasn’t this been done?
If abortion really is murder, then lobby local prosecutors to charge every nurse and assistant at Planned Parenthood as an accessory to murder before-the-fact. What is the Pro-Life Movement sitting around waiting to pass laws for? The laws are already in place – just use them. Who needs to file another lawsuit, wait several years and spend millions of donor dollars to reach the Supreme Court? A pox on the Supreme Court!
Instead of trying to change the laws, just support people who run for district attorney on a platform of prosecuting abortionists as murderers. In fact, since the pro-life movement has popular support nationwide, why don’t we just flood the market for young prosecutors with young lawyers who believe as we do? In ten years, we’ll control every prosecutor’s office in the country. What is everyone waiting for? We can win this!
Except, of course, the courts will never go for it – and not because the judges are all “pro-abortion,” though many are so. It’s because there simply is no historical precedent for prosecuting abortion as murder. Historically, such laws punished procuring a miscarriage by the woman, as a felony, or manslaughter if the woman died.2 The law did not punish the death of the unborn child. That sounds a lot like the law of Israel we looked at. Likewise, other laws made it a misdemeanor to procure drugs to cause a miscarriage.3
Also keep in mind that every judge is obsessed with precedent. Anyone who has actually studied the law of murder knows that abortion is not murder. Don’t believe me? Go ahead, prosecute an abortionist under a murder statute, and see how far you get. No really – try it. Sometimes people only learn things the hard way. The school of hard knocks, they call it.
The statutes I cited above made certain conduct a crime against the woman, not the child. The modern pro-life movement’s preoccupation with establishing that the unborn child is a legal person is artificially constructed by lawyers from new legal cloth. If the truth be known, that argument is driven by the goal of balancing the mother’s new found 1973 “constitutional right” of abortion against another judicial perversion of the Constitution. Namely, an unborn child’s hoped-to-be newly found “constitutional right” to life under the Fourteenth Amendment, once the court has enough “pro-life” justices.
What a cluster of legal, theological, and moral errors we have made for ourselves all because we do not know or care about the rule of law. It isn’t God’s laws or the laws of nature that have put us between a rock and a hard place. Both the rock and the hard place are of our own making.
So, being unable to make the case legally or historically that abortion is murder, pro-lifers are now just making the case morally that abortion is murder. Except, I have just negated and discredited all of the moral arguments. There are no moral arguments left to peddle. What is it, exactly, that anyone hopes to gain by singing that same old tune? Besides, you know, to raise funds for pro-life organizations? But let’s return to where we jumped off.
As I see it, there is no need for abortion to be murder. Abortion is perfectly contemptible and criminal all by itself as abortion, without also calling it murder. The only thing that is lost, by not calling abortion murder, is the possibility of imposing harsh penalties, such as capital punishment or life imprisonment. But I never hear anyone in the pro-life community calling for women who get an abortion to be punished at all. It’s like the women get a free pass, even though they’ve hired a hit man, for all practical purposes. What gives?
For the life of me, if the pro-life community won’t press for the punishment of everyone who procures an abortion as a murderer, I can’t figure out one single good reason why anyone would want to continue to beat that drum and claim that abortion is murder. It’s not like anyone has to make that claim, just to ban or punish abortion. Anti-abortion laws have existed for many years without equating abortion with murder.
Which leaves only one very bad reason for claiming that abortion is murder – for its propaganda value, meaning its ability to persuade you to give money to self-proclaimed pro-life do-gooders. Saying abortion is murder does not actually provide any legal advantage, in drafting legislation, in arguing before a court, or in general criminal enforcement. All it does is sensationalize the matter for public consumption. Or perhaps I should say, all it does is politicize and trivialize the matter, driving a wedge between people to divide them. And I say, good riddance to it.
Let’s review. Abortion laws before Roe v. Wade were not essentially based on science. Nor were they based on protecting the unborn child as a human being. They were based on protecting the mother from procuring an abortion that caused her harm. That is why you’ve heard the term, safe legal abortions. It is a response to those old laws. These laws were based on the wrongfulness of the act of procuring a miscarriage.
When Roe came along, science was improperly used by the Supreme Court as a basis to change the laws of abortion nationwide. In an attempt to reverse Roe, the pro-life community has misguidedly tried to use science to prove a fetus is life, and then jumping from that scientific claim to a legal conclusion that life equals a human being.
But in doing this, the pro-life community made two key mistakes: 1) the question whether a fetus is a human being is not essentially a scientific issue, but a legal and theological one; and 2) the question of what constitutes murder of a human being is also quintessentially a legal question, which science cannot answer.
In pursuing this false narrative – that abortion is murder – the pro-life community has also made a number of theological errors. First, in assuming that the mere presence of human biological life in a fetus is sufficient to conclude that a fetus bears the image of God. The image of God is not something that science can even begin to address. It is something that cannot be seen or tested for.
Second, they have ignored the clear scriptural evidence that the image of God, and the eternal spirit of a person, are connected with the breath of life. And the breath of life is not conferred until a live birth.
Third, the mere fact God has infinite foreknowledge concerning every fetus does not mean every fetus is a human being or a legal person. God’s knowledge does not confer legal status.
Between these three things, it is clear that a theological case based on the Bible cannot be made to support the idea that an unborn fetus is fully a human being. In other words, the pro-life community has no moral arguments – based on scripture or rooted in Christianity – that an unborn fetus is a legal person. And if a fetus is not a legal person, then abortion is not, and cannot be, murder.
Fourth, as a theological matter, if a fetus is fully a human being made in the image of God, then aborted and stillborn fetuses all represent eternal human souls who have an eternal destiny. There are essentially only two options for understanding what happens to them. Either: 1) they are universally saved by some variation of an age of accountability, which has no textual support in the scriptures and which violates the fundamental nature of the Fall; or 2) they are universally condemned to damnation because none of them have exercised faith or belief in Christ.
For me, the only way out of this theological dilemma is to assume that an unborn fetus is not a human being. And if that is the case, then abortion is not, and cannot be, murder. But hey, if you want to believe all stillborn and aborted babies are condemned to hell – more power to you. It’s no skin off my nose. But if you believe in an age of accountability, you are only fooling yourself. Plus, you make Jesus a universalist.
Fifth, the law of ancient Israel – a law delivered by God Himself – strongly suggests that a forced premature birth resulting in the death of the child is not murder. Granted, that law is not legally binding on Gentile nations today. Yet it remains a legal corroboration of the theological principles. It is simply evidence that lines up with all previous evidence. Quite likely, it is a law which reflects the law of nature which applies to everyone, everywhere, all the time.
Then there are the practical legal considerations. If abortion truly is murder, then the abortionist doctor is not the only one guilty. All nurses and assistants to the abortionist are accessories before the fact. All women who have had an abortion are guilty of conspiracy to commit murder, the same as hiring a hit man to kill their baby. Historically, these would be charged with manslaughter if the mother died, not the child.
Also, if abortion truly is murder, then all those who are guilty of the murder should be punished commensurate with other murderers who are guilty of the same level of offense. Including the women, who should all be punished by the same standard as other people who hire a hit man.
But strangely, I’ve never heard anyone in the pro-life community pressing for the punishment of women in this way. It makes me question whether the people who claim abortion is murder really mean what they say. Actually, I conclude they must be insincere. Either that, or just woefully ignorant of the consequences of their words. Which is better being ignorant or deceitful? Perhaps it is something else, such as the love of money by pro-life organizations that have never thought it through after almost 50 years of abortion.
Another thing I never hear from the pro-life community is a call to simply use the laws of murder already on the books to prosecute people who they say are murderers. All of which lead me to believe that if abortion truly is murder, then it would be handled in a completely different way than it actually is in the legal system. Therefore, it is more likely that abortion is not murder, than the likelihood it is. And this reinforces my prior conclusions.
This leads me to conclude that saying abortion is murder is merely a ploy, to play on emotions and to use as propaganda and fund raising by those who have no shame or are ignorant or mislead. No one really believes abortion is murder, because no one actually acts like it the way abortionists, etc. are treated in the real world. All the possible moral arguments to the effect that abortion is murder are bogus. Propaganda or money must be all the pro-life community has left.
Of course, nothing in my analysis leads me to believe that abortion is not wrong, or that it is not a crime. It just means that abortion is the crime of abortion, or procuring a miscarriage, and not the crime of murder. As far as I can tell, there’s no great loss there. So, for the love of God and His laws, since abortion is not murder, please stop saying it is.
2. For instance see MCL §750.14 titled “Miscarriage; administering with intent to procure; felony, penalty.” This Michigan law stated: “Any person who shall willfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony, and in case the death of such pregnant woman be thereby produced, the offense shall be deemed manslaughter. In any prosecution under this section, it shall not be necessary for the prosecution to prove that no such necessity existed.”
3. See MCL §750.15 which stated “Any person who shall in any manner, except as hereinafter provided, advertise, publish, sell or publicly expose for sale any pills, powder, drugs or combination of drugs, designed expressly for the use of females for the purpose of procuring an abortion, shall be guilty of a misdemeanor. Any drug or medicine known to be designed and expressly prepared for producing an abortion, shall only be sold upon the written prescription of an established practicing physician of the city, village, or township in which the sale is made; and the druggist or dealer selling the same shall, in a book provided for that purpose, register the name of the purchaser, the date of the sale, the kind and quantity of the medicine sold, and the name and residence of the physician prescribing the same.”