--- title: "“Equal protection does not require prosecuting mothers; targeting abortionists (and granting mothers immunity) is both constitutional and more effective at reducing abortions.”" description: "If the preborn are persons — as biology and Scripture affirm — then the Fourteenth Amendment's guarantee that no state shall 'deny to any person within its jurisdiction the equal protection of the laws' requires that the laws protecting born persons from homicide also protect the preborn. A state…" type: "argument" id: "arg-equal-protection-14th" category: "Legal & political" mode: "Offensive" source_url: "https://www.abhortion.org/arguments/arg-equal-protection-14th.html" --- # “Equal protection does not require prosecuting mothers; targeting abortionists (and granting mothers immunity) is both constitutional and more effective at reducing abortions.” **Category:** Legal & political · **Mode:** Offensive · the positive case ## The objection **The claim:** > "Equal protection does not require prosecuting mothers; targeting abortionists (and granting mothers immunity) is both constitutional and more effective at reducing abortions." _A pro-life incrementalist argument._ ### The strongest version of this argument No one is automatically executed under any homicide statute; charging, conviction, and sentencing all involve discretion. Historically, abortion laws targeted providers, treated mothers as second victims, and used maternal immunity to secure testimony against abortionists. Mandatory maternal prosecution could deter women from pregnancy help and drive abortions underground — arguably yielding more deaths, not fewer. ## The positive case If the preborn are persons — as biology and Scripture affirm — then the Fourteenth Amendment's guarantee that no state shall 'deny to any person within its jurisdiction the equal protection of the laws' requires that the laws protecting born persons from homicide also protect the preborn. A state that criminalizes killing some human beings while categorically exempting the killing of preborn human beings withdraws the equal protection of the law from a class of persons. Bills that add carve-outs (e.g., no prosecution of the mother, or protection only after a heartbeat) reintroduce the very inequality the clause forbids. ## Supporting points - Prof. Charles Rice: refusing to prosecute the killing of unborn persons while prosecuting all other killings denies the unborn equal protection. - George & Finnis (Dobbs amicus): the unborn are Fourteenth Amendment persons; the amendment 'codified equality in the fundamental rights of persons.' - Originalist view (Federalist Society): a state violates equal protection when it selectively withdraws the protection of criminal law from a disfavored class. - Abolitionists apply this to reject exception clauses as constitutionally and morally inconsistent. ## The response Abolitionists reply that equal protection concerns the law's stated standard, not sentencing discretion: a statute that pre-declares an entire class of killers immune is not exercising mercy case-by-case but writing partiality into the code (Prov. 17:15; Deut. 16:19). Prosecutorial discretion, affirmative defenses for coercion, and treating genuinely deceived or coerced mothers mercifully are all compatible with equal protection; a blanket statutory immunity for all mothers is not. The pragmatic 'more deaths' claim is contested and, abolitionists argue, cannot justify writing an unjust standard into law (cf. arg-obedience-pragmatic). ## Discussion questions 1. Does 'equal protection of the laws' permit a legislature to categorically exempt one class of killing from homicide law? 2. What is the difference between prosecutorial mercy in a specific case and a statute that pre-acquits an entire class? ## Source transcript Drawn from Does the Pro-Life Movement Hate Justice? (T. Russell Hunter, 'Justice Alone') — The equal-protection / H.R. 722 exception-clause discussion (Lila Rose / Americans United for Life).. ## References - [Can the Fourteenth Amendment Be Used to Protect Human Life Before Birth? (Rice, Paulsen, George & Finnis, Craddock on equal protection for the unborn)](https://www.heritage.org/life/report/can-the-fourteenth-amendment-be-used-protect-human-life-birth) _(legal analysis)_ Heritage Foundation · Heritage **Supports:** legal scholars' case that the 14th Amendment protects the unborn - [Yes, Congress Has Constitutional Authority to Protect Unborn Children (equal protection = a state may not withdraw the protection of homicide law from a class of persons)](https://fedsoc.org/commentary/fedsoc-blog/yes-congress-has-constitutional-authority-to-protect-unborn-children) _(legal analysis)_ The Federalist Society · FedSoc **Supports:** originalist argument that selectively withdrawing homicide protection violates equal protection - [H.R.722 — Life at Conception Act (119th Congress): declares constitutional right to life at fertilization; 'Nothing in this bill shall be construed to authorize the prosecution of any woman for the death of her unborn child.'](https://www.congress.gov/bill/119th-congress/house-bill/722) _(primary/legislation)_ U.S. Congress · Congress.gov **Supports:** example bill with the maternal non-prosecution clause abolitionists critique - [Congressional resolution would recognize unborn as 'persons' under the 14th Amendment Equal Protection Clause; protections 'shall not be construed to permit the prosecution of any woman.'](https://lamborn.house.gov/media/in-the-news/congressional-bill-would-recognize-unborn-babies-legal-persons-entitled-equal) _(press release)_ Office of Rep. Doug Lamborn · U.S. House **Supports:** equal-protection framing plus the 'shall not permit prosecution of any woman' clause - [The Abolitionists Are Wrong: Equal Protection Does Not Mean a Mother Who Gets an Abortion Has Committed a Capital Crime (pro-life case for maternal immunity / targeting abortionists)](https://www.texasallianceforlife.org/the-abolitionists-are-wrong-by-chris-maska/) _(opposing view / steelman)_ Chris Maska, Texas Alliance for Life · Texas Alliance for Life **Supports:** steelman: pro-life case for maternal immunity and targeting abortionists - [Equality Emerges as a Ground for Abortion Rights (pro-choice equal-protection counter: bans implicate women's equal citizenship)](https://law.yale.edu/sites/default/files/documents/faculty/papers/franklin-siegel-equality-emerges-chapter-2-endnotes.pdf) _(opposing view)_ Franklin & Siegel · Yale Law **Supports:** opposing (pro-choice) equal-protection argument grounded in women's equality ## Related **Related scriptures:** - [Proverbs 17:15](../scripture/proverbs-17-15.md) - [Deuteronomy 16:19](../scripture/deuteronomy-16-19.md) - [Leviticus 19:15](../scripture/leviticus-19-15.md) - [Exodus 21:22-25](../scripture/exodus-21-22-25.md) - [Ezekiel 45:9-10](../scripture/ezekiel-45-9-10.md) **Related arguments:** - [God commands 'justice, and only justice' — not partial or deferred justice](arg-justice-only.md) - [“Making mothers subject to prosecution (up to capital murder) is unjust, cruel, and…”](def-prosecute-women.md) - [“Bills that ban abortion at a heartbeat, at pain-capability, or after an ultrasound…”](def-milestone-bills.md)