Abolition and Equal Protection: A Response to Barber’s False Claims
Recently, the Ethics & Religious Liberty Commission (ERLC), an entity of the Southern Baptist Convention (SBC), published its Light Magazine 2022 Winter issue, Pursuing a Culture of Life. One of the articles was by SBC President, Bart Barber, entitled, “Working Toward the End of Abortion: A Pro-Life Response to Abolitionism’s Critiques.”
But the title of Barber’s piece is a bit of a misnomer. Instead of responding to critiques, the bulk of his article is spent making false claims about the abolitionist position, false claims about the law and our legal system, and even false claims about the general Pro-Life movement’s positions.
Here, we will examine a few of Barber’s most egregious claims.
Life of the Mother
Barber leads off with a “question of contention” on the issue of life-threatening danger to the mother. Yet, in spite of what Barber implies, most abolitionists agree that laws should allow doctors to save the life of the mother in a life-threatening situation, after doing everything they can to save both, even if an unintended yet unavoidable result is the death of the baby. Every single abolition bill has allowed for this either under existing law or, more often, by including an explicit provision.
Barber should be very well aware of this, but he nevertheless leads off his attacks with this erroneous claim, probably because it sounds so frightening. Yet his own “evidence” for this claim demonstrates its absurdity.
He begins by spending two paragraphs attacking a 2019 Ohio bill, House Bill 413. Barber claims that the bill “presume[s] to mandate medical procedures that do not exist in the present state of medical technology,” and he tries to use it to argue that abolitionists write bad bills.
But here’s the thing: abolitionists did not write that bill. Even more importantly, that bill has never been claimed as an abolition bill. In 2019, prior to Dobbs, a bill was not considered to be an abolition bill unless it explicitly nullified Roe v. Wade, which the Ohio bill did not. As a result, trying to ascribe that bill to the “abortion abolition movement” is extremely disingenuous.
Although that should be enough to demonstrate the lack of good faith argument, Barber digs the hole deeper. He claims the Ohio bill “presumes to mandate” a medical procedure that does not yet exist, but then he leaves out an important part of the bill. He cites line 5377 of the bill but omits two important words from that same line. There, the bill only lists attempting to reimplant an ectopic pregnancy as an option “if applicable,” that is, if and when such a procedure were to be medically feasible. But Barber chops off the “if applicable” part.
This is interesting because, right after his attack on the bill, Barber himself says that such a procedure “would be a welcome and life-changing technology should it be developed, and we should pray for the day when it becomes viable.” Yet then he attacks a legal provision that tries to account for the procedure ever becoming viable. By not mentioning the “if applicable” part of the provision, Barber makes this part of the bill sound scary and out of touch instead of being something that accounts for the possible development of the very procedure he says we should pray for.
Later, Barber tries to use a 2022 Louisiana bill, House Bill 813, as evidence for his false claims. Barber says, “If abolitionists had succeeded in passing [HB 813] as they had written it, the definition of abortion in Louisiana would have included procedures to take the life of ectopic babies.” But that is completely false. While Barber does get it right (this time) that HB 813 actually was written and supported by the abolitionist movement, he gets pretty much everything else about it wrong.
Barber appears to believe that the bill’s removal of language regarding “implantation” in favor of “fertilization” in the Louisiana definition of “person” would have somehow criminalized the act of removing an ectopic pregnancy threatening the mother’s life.
Yet the whole reason an ectopic pregnancy threatens the mother’s life is because the unborn child has implanted somewhere other than the uterus. As the article Barber quotes says, “In an ectopic pregnancy, the egg [i.e. embryo] implants outside the uterus, usually in the fallopian tube” (emphasis added).
The existing Louisiana law defining “person” did not specify where implantation had occurred. So even under existing Louisiana law, an embryo implanted in a fallopian tube is just as much a “person” protected by law as an embryo implanted in a uterus. Since HB 813 would not have changed that at all, arguing that the bill would have somehow criminalized dealing with an ectopic pregnancy is ludicrous.
Even if Barber believes the bill could have been more clear on that point, the proper solution would have been for the bill to be amended to add further clarification. But instead of making suggestions or attempts to improve the Louisiana bill, the leadership of the ERLC joined efforts to kill the bill, in which they succeeded.
Culpability of Abortive Mothers
Barber spends the next three sections of his article discussing whether women who get abortions are victims and whether they should be subject to legal consequences if they have been a willing participant in the death of their own preborn child.
The standard line of the Pro-Life establishment has been that no woman should ever be subject to laws against prenatal homicide because all women are victims, and Barber begins by arguing as much.
Tom Ascol has previously written a helpful response to this kind of claim: “Are women who seek abortions victims? Of course, in the sense that every human being is a victim of sin and its consequences. Beyond that there is no doubt that some women are coerced and manipulated into abortion due to being trafficked or otherwise abused. As the Bible requires in making any judgment, all the relevant facts must be taken into account. But these realities do not mean that as a class all women who procure abortions are victims in some special sense, or on par with the babies that are intentionally killed by the procedure.”
In other words, in the legal sense, some abortive women are victims, and some are not.
Yet Barber begins his arguments by echoing the mantra of the Pro-Life establishment, that all abortive women are victims even in a legal sense because they are pressured into abortions by men, their families, social stigma, and the abortion industry.
Perhaps one of the chief reasons many women in our country believe there is nothing wrong with aborting a child is that even the bills pushed by the Pro-Life movement have taught them this.
The law is a tutor. When a Pro-Life bill says that the abortive mother has done nothing legally wrong, they believe it. Sadly, the Pro-Life establishment has been complicit in perpetuating this grave misunderstanding. The abolition bills Barber opposes are actually the solution.
First, once they went into effect, abolition bills of equal protection would immediately teach everyone that a human being from fertilization to birth is just as much a human being as one after birth.
Secondly, unlike the Pro-Life bills Barber supports, abolition bills would actually deal with the pressure placed upon women by their boyfriends, parents, and the abortion industry.
When was the last time someone seriously tried to talk you into or pressure you into murdering a born person? It has probably never happened to you. Why not? Because it is illegal! And if you were to go through with it, the person who talked you into it would be a party to your crime.
Yet because abortion is not currently treated as homicide in any state, guess what is not illegal. That’s right. Because Pro-Life legislation says it is legal for a mother to get an abortion, that also makes it legal to encourage her to do it. And up to threatening her life or limb, it even makes it legal to pressure her into it.
This is why, even in Barber’s home state of Texas, some previous abortion clinics are still open so, among other things, they can teach and encourage women how to abort their children. Legally.
Meanwhile, at the same time Barber says women who consent to abortion should not be legally culpable, he says that they are morally and spiritually culpable. This is a major disconnect and inconsistency. While of course not all sins are or should be crimes, abortion is the knowing and willing shedding of blood of innocent human beings. Providing justice for such a crime is the very first duty God gave to civil government when He instituted it in Genesis 9 after the world had been filled with violence before the Flood.
Barber apparently has no problem with homicide laws protecting his life. For some reason, he seems okay with considering people to be morally, spiritually, and criminally culpable for killing another human being after birth. Yet he believes the mother who kills her own child before birth somehow is morally and spiritually culpable but is never culpable before the law.
Barber himself tries to wrestle through his own obvious inconsistency: “But didn’t this essay just declare the woman to be morally and spiritually culpable in abortion? If so, why should abortion laws not hold them legally culpable? Surely there is some prosecutable role that the woman plays? Is she guilty of murder-for-hire?”
Barber answers his own question with, “It depends.” At this point, Barber seems to unknowingly stray from the “mainstream Pro-Life view” and toward abolition by indicating he may be okay with prosecuting some women (the ones who are not victims?). He then goes on to make some confusing and erroneous statements about how criminal laws work:
“But what about that “Shout Your Abortion” activist? Is there no legal recourse for differentiating between her and a frightened teenager or a victim of sex-trafficking? I think it is unnecessary to single out women for prosecution in laws banning abortion because most states already have criminal conspiracy laws on the books. If performing an abortion is a crime, and if the abortionist is held guilty by the law, it is likely possible under existing law to prosecute any obviously and egregiously culpable woman for criminal solicitation or criminal conspiracy.”
First, saying “it depends” and “prosecute some women” is contrary to the position of almost every single organization in the Pro-Life movement Barber claims to be representing, including the ERLC. Under bills pushed by the Pro-Life establishment, it does not “depend.” Every single woman who aborts her own child gets a free pass, regardless of how clear her intent or how heinous the circumstances.
Since Barber seems lost here, let’s remember: abolitionists are the ones who say “it depends” and “prosecute some women.” Abolitionists are the ones who say to let the justice system consider each situation on a case-by-case basis. Allowing the justice system to “differentiate among the Shout Your Abortion activist, a frightened teenager, or a victim of sex-trafficking,” is the abolitionist position. The Pro-Life establishment position Barber says he supports is the one that says none of them should be penalized for killing their own because they are all legal victims.
At the same time he seems to misunderstand these positions, Barber also demonstrates a lack of understanding of the law and the legal system. The bills passed by the Pro-Life movement for decades have explicitly stated that no woman may ever be prosecuted for aborting her own child. So not even the “Shout Your Abortion” women can be held legally accountable for murdering their children. As a result, contrary to what Barber claims, they cannot be prosecuted for criminal solicitation or conspiracy either. That is not how the law works.
Some of you may be questioning the claims made here about Pro-Life bills. Please look at the laws for yourself. Here are a few examples of these kinds of legal provisions from Barber’s home state:
“This [homicide] chapter does not apply to the death of an unborn child if the conduct charged is…conduct committed by the mother of the unborn child.” Tex. Penal Code § 19.06.
In other words, you cannot charge a mother with homicide of her own child, whether she solicits or conspires with someone else to do it or not.
Here is similar language from the 2021 Texas Heartbeat Act:
“[The Texas Heartbeat Act] may not be construed to authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed or induced or attempted to be performed or induced in violation of this subchapter.” Tex. Health & Safety Code § 171.206(b).
And here is more language from the 2021 Texas Human Life Protection Act (i.e. the “Trigger Bill”):
“[The Texas Human Life Protection Act] may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted.” Tex. Health & Safety Code § 170A.003.
All of these laws were introduced by Pro-Life politicians, enacted by Pro-Life majorities, and signed by Pro-Life governors. And laws like this are not just in Texas. This is the way Pro-Life bills are written around the country because Pro-Life organizations like the ERLC oppose any abortive mother ever being legally accountable for murdering her own child.
Burden of Proof
Barber goes on to talk about how the burden of proof should not be on the woman (as if anyone had been arguing otherwise): “Let abortion abolitionists seek to prosecute women under these existing laws if they must [not possible, as discussed above], and if they cannot meet the requisite burden of proof, then it is in no way necessary or just to take the burden of proof away from these activists and place it upon the woman instead.”
Yet again, Barber displays his unfamiliarity with basic concepts of criminal law and tries to make it sound like abolitionists would require mothers to prove their own innocence, but that is completely false.
In our American system of justice, every criminal defendant is presumed innocent, and the burden of proving their guilt beyond a reasonable doubt is always on the government. If that is what Barber says he wants, fantastic! That is exactly the way it would work under every abolition bill of equal protection because that’s exactly how it works when someone is accused of homicide of a born person.
Another glaring issue throughout Barber’s article is that he repeatedly ignores the existence of medication abortions.
At one point, Barber says, “What is the murder weapon? It’s a set of surgical tools, right? Who operated the murder weapon? The abortionist did. The abortionist is the murderer, and any law banning abortion should identify the abortionist uniquely as such.”
Ignoring the whole murder-for-hire issue for the moment, what about the abortions where there is no abortionist wielding surgical tools? Even before Dobbs, the majority of all abortions were medication abortions. The mother takes the pills herself.
Mr. Barber, welcome to 2023, where Pro-Life bills regulating surgical methods have simply redirected the demands of the abortion market toward earlier and easier methods. How do we stop that? Should we criminalize the pills, which also have positive uses? Would outlawing guns stop murders of born people?
Instead,the proper way to deal with prenatal homicide is not to try to imagine every possible tool, chemical, and method someone may use to kill a preborn baby and then try to outlaw it. That would be impossible. The right way to deal with prenatal homicide is the same way we deal with postnatal homicide: to prohibit the act of causing the death of another person if done with criminal intent. And do not give anyone a license to kill. Make the prohibition apply to everyone.
Barber winds down his article by defending his own state representative, Jeff Leach, as well as Oklahoma senators Greg Treat and Jason Smalley, because Barber alleges they were criticized by abolitionists merely because these legislators “prefer the pro-life approach over the abortion abolition approach.”
The irony of this is that, just a few paragraphs earlier, Barber said this: “The abortion abolition movement has, so far, been unable to pass legislation even in the most pro-life states in the Union.”
This is a self-own, because what Barber fails to mention is the primary reason why the abolitionist movement has, so far, been unable to pass legislation in the most Pro-Life states in the union. You see, Leach, Treat, Smalley, and other Pro-Life politicians do not merely “prefer the pro-life approach over the abortion abolition approach.” Rather, they are the ones who are killing the abolitionist bills. And they are doing so at the urging of Pro-Life organizations like the ERLC and Pro-Life leaders like Bart Barber.
Perhaps the culture in many states would start believing a fetus is a person if we all started acting like it. Perhaps we should all agree to support bills that try to protect their lives with the same laws protecting the lives of all other human beings. And perhaps we could truly abolish abortion and pass those bills and if the Pro-Life movement and its leaders like Bart Barber would stop killing them.
Regardless, we will continue to strive to do God’s will God’s ways by seeking to love our preborn neighbors as ourselves by protecting their lives with the same laws that protect ours.