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July 28, 2022

"Death After Dobbs: Addressing the Viability of Capital Punishment for Abortion"

The title of this post is the title of this new paper authored by Melanie Kalmanson now available via SSRN. Here is its abstract:

Pre-Dobbs legislative efforts and states’ reactions in the immediate aftermath of Dobbs indicate the post-Dobbs reality that extreme conservative states will seek to criminalize abortion and impose extreme sentences for such crimes, up to and including death.  This Article addresses that reality.  Initially, this Article illustrates that abortion and capital punishment are like opposite sides of the same coin, and it is a handful of states leading the counter majoritarian efforts on both topics.  After outlining the position of each state in the nation that retains capital punishment on capital sentencing and abortion, the Article identifies the most extreme states on both issues, referenced as “Punitive States.”

Then, addressing the post-Dobbs reality that Punitive States could attempt to punish abortion by death, this Article shows that the current capital sentencing framework used across the country is incompatible with abortion offenses.  The aggravating factors and mitigating circumstances, if applied to abortion offenses, would not serve their constitutional purposes.  Therefore, this Article argues, capital sentences imposed under the current framework for abortion offenses would stand in violation of the Sixth and Eighth Amendments to the U.S. Constitution.  Further, this Article argues that attempts to write abortion-specific capital sentencing proceedings would prove to be acts in futility.  Thus, the Article ultimately concludes that death is not a viable punishment for abortion.

July 28, 2022 at 01:03 PM | Permalink


Another article based on a false premise.

There is exactly zero chance of abortion becoming a death penalty issue, whether for the doctor or mother.

This article is a bad joke.

My heavens. The majority of the articles on this blog are not even serious (That’s a statement about the status of legal academia, not Doug. He can only post what’s out there.)

Posted by: TarlsQtr | Jul 28, 2022 4:25:31 PM

Tarls, I recall that you have asserted the Constitution should be read to treat fertilized eggs as persons. If so read, isn't there an argument that the 14th Amendment would demand that existing capital punishment laws have to apply to intentional "killings" of persons who are fertilized eggs? Indeed, Ohio's aggravated murder statute, ORC 2903.01, covers "purposely, and with prior calculation and design, caus[ing] the death of another or the unlawful termination of another's pregnancy." Arguably, a planned abortion after a heartbeat has been detected now could be charged as a capital crime in Ohio now.

I surmise you are saying, Tarls, that no prosecutor would ever actually want to use his discretion to bring a capital prosecution in response to an intentional "killing" of "persons" who are fertilized eggs. Is that your point? If so, that seems to me to be a statement that you do not think fertilized eggs will be (or should be?) legally protected like born persons. Is that are fair understanding of your statement here?

I do not think you mean to say it "is a bad joke" to imagine treating fertilized eggs as legal persons, but you comments suggest you view your own prior claims on this front as "not even serious."

Posted by: Doug B. | Jul 28, 2022 10:32:08 PM

In my state, as a result of the Dobbs decision, there is a very solid argument that abortion is punishable by death. My state already define a fetus as a person and that definition has already been interpreted as applying to the homicide statutes. And there is no question that an abortion is a deliberate and intentional act.

Once you get past the fact that abortion is a death eligible offense, you then would have to turn to the statutory aggravators. Unless a doctor is doing it without a fee, the fact that they are being paid for the abortion would satisfy the statutory aggravator of the murder being done for the purpose of receiving money.

The only barriers to the death penalty being imposed are: 1) that the lesser punishment will effectively eliminate the willingness of doctors to provide this service even when medically appropriate; 2) that those abortions that are performed will be done in secret with the fetuses being disposed of in a way designed to reduce the likelihood of discovery; and 3) the locations where most of the abortions will be performed are less likely to elect the type of prosecutor who would even consider seeking the death penalty and juries are unlikely to impose it. But none of those are reasons to have a statute that makes abortion punishable by death.

With all due respect to the author of the piece, the conclusion that abortion does not fit well within the current death penalty structure because the intent behind those statutes were not designed for abortion is more wishful thinking than solid argument. While the author might believe that it would be wrong to apply those statutes to abortion and that they do not reflect what the author believes would be the appropriate consideration if the death penalty was sought, that argument reflects his view of how abortion relates to the traditional concerns of the homicide code. But once you concede that abortion can be punished as murder, the argument that abortion is somehow different from other murders simply reflect the personal preferences of the author/

Posted by: tmm | Jul 28, 2022 11:00:23 PM

If, as anti-abortion folks argue, a fertilized egg is a human life, it follows, as night follows day, that the deliberate, premediated abortion of that fertilized egg is murder in the first degree. Murderers in the first degree are subject to the death penalty in those states where the death penalty is still is on the books. Of course a prosecutor can choose to prosecute a mother on the charge, or may choose a lesser charge. The fact remains, however, that first degree murder is first degree murder.

Posted by: anon14 | Jul 29, 2022 10:24:43 AM


So? The support for capital punishment in such circumstances rounds to zero. Westboro Baptist Church and that’s it. I don’t support it either. It doesn’t mean there should be no legal protections.

You may ask why. Well, because a mother making a choice to kill an unborn child is different than a brutal murder for hire. It’s not really the correct word, but we can be more sympathetic to some murderers than others. A woman who was abused for years and decides to kill her husband is more sympathetic than one who does it because she has a boyfriend and wants her husband’s money for a new life with the new boy toy.

The article is a scare tactic.

Likewise, I have sympathy for a single mother who doesn’t feel as if she can support another child so makes a bad decision on the wrong-headed belief that the fetus is not human.

It’s why we have degrees of murder.

Posted by: TarlsQtr | Jul 29, 2022 11:18:41 AM

Tarls: if a fertilized embryo is to be viewed legally and morally a person, then it would seem a doctor who performs dozens of abortions for money ought to be viewed as a mass murderer for hire. You seem to be saying nobody looks at the issue this way, which seem to be an admission that nobody really considers embryos to be legally or morally the same as born people. Not trying to put words in you mouth, but I think it notable that you are asserting nobody really wants to treat the “killing of unborn children” at all like the way we treat the killing of born children.

Posted by: Doug B. | Jul 29, 2022 1:18:43 PM

Too bad this Court isn't likely to revisit cases like Roper v. Simmons or Kennedy v. Louisiana. I do not believe either rest on strong constitutional support.

I actually believe the test announced in New York State Rifle & Pistol is the only one that should matter for any constitutional challenge, and on that score much of the federal government fails. Too bad plenty of what I like (much 1st amendment law) would also fail such a test.

Posted by: Soronel Haetir | Jul 29, 2022 2:48:04 PM

You are right. That’s what an overwhelming majority of Americans (not me) believe. Such a moral flaw is why we as a nation have been slaughtering millions of pre-born babies.

I see Kermit Gosnell, for example, as a serial killer.

Posted by: TarlsQtr | Jul 29, 2022 6:43:39 PM

Tarls: is it not fair to say that you view every abortion doctor to be a mass murderer? And is it also fair to say you think mass murderers should be subject to the death penalty?

Posted by: Doug B. | Jul 29, 2022 8:12:03 PM



Of course, I’m in the extreme minority and such a thing will never happen. It’s why the article is a joke.

Posted by: TarlsQtr | Jul 29, 2022 8:35:54 PM

Tarls, in your second post in this thread you said you don't support the death penalty for abortion providers ("The support for capital punishment in such circumstances rounds to zero. Westboro Baptist Church and that’s it. I don’t support it either.")

Then, when Doug challenged you, you changed positions and now say you do support it ("Yes. Of course, I’m in the extreme minority and such a thing will never happen.")

Which is it?

Posted by: Curious | Jul 29, 2022 8:40:00 PM


If you read the quote in the context of the entire comment, I was referring to mothers.

Doug then brought up the cases of doctors. I was stating that I am in the extreme minority when it comes to prosecuting doctors so harshly.

I hope that clarifies.

Posted by: TarlsQtr | Jul 30, 2022 11:17:44 AM

That helps, Tarls, but what is the basis for your assertion that you "in the extreme minority" among the anti-abortion community in thinking that abortion doctors ought to be severely punished "harshly" and even to the fullest extent of the law?

As mentioned before, Ohio law already expressly provides that "the unlawful termination of another's pregnancy" could constitute Aggravated Murder (a capital offense). And I have certainly heard any number of anti-abortion advocates talk about treating abortion as a form of murder.

Of course, for a variety of reasons, only a very tiny percentage of killings of born persons lead to capital prosecutions. And prosecutors in many states generally have broad discretion to decide just when to pursue capital prosecutions for intentionally killings (or even felony murder), even in cases in which an "extreme majority" might not fully support a capital prosecution. Talking though the "viability of capital punishment for abortion" seems like a reasonably useful exercise at this moment of legal uncertainty, not a "joke." (It seems at least as legally and constitutionally viable, as of this writing, as Prez Trump's repeated eagerness to advocate for the death penalty for drug dealers.)

Posted by: Doug B. | Jul 30, 2022 11:43:48 AM

I wish all sides would calm down. Abortion presents genuine moral dilemmas. There are no good answers, only less bad ones.

Posted by: William C Jockusch | Jul 30, 2022 12:06:24 PM

A legislator in Texas, the most(?) conservative state in the country proposed such a bill. It never made it out of committee. It’s not going to happen.

II’s such a fringe topic, I don’t think they have even polled it.

I cannot believe someone as intelligent as you feels this has a possibility of actually happening.

Posted by: TarlsQtr | Jul 30, 2022 1:15:44 PM

I think is very possible, Tarls, for a local prosecutor in Ohio or elsewhere to believe, as you do, that abortion involves the killing of persons that should subject to punishment comparable to how we punish the killing of other persons. (And, again, I believe you have asserted this is how the Constitution must or should be read.)

I doubt for a number of political and practical reasons that we will soon see a significant number of death sentences sought or imposed for abortion. But there were only a few states and a few prosecutions of child rape as a capital offense before SCOTUS took up that issue. And Trump’s advocacy for the death penalty for drug dealers is another reminder that politicians big and small might see political advantage in certain kinds of capital punishment advocacy.

Most importantly, this is really only a “fringe topic” if it is only a “fringe” belief that the unborn ought to be protected by law comparable to the born. The rhetoric of many anti-abortion advocates (and your statements) do not make this appear to be a fringe position, and so I do not see it as a joke to work through the implications, in law and practice, of treating abortion as a form of murder. But I will accept your assertion that only "fringe" thinking could imagine respecting the unborn comparably to the born in the operation of our criminal laws.

Posted by: Doug B. | Jul 30, 2022 2:25:31 PM

No one is actually going to be executed for having an abortion and we all know it. All the exotic theoretical possibilities are all well and good, and about as useful, and likely, as the theoretical possibility that I will replace LeBron James on the Lakers' roster.

Posted by: Bill Otis | Jul 30, 2022 4:56:17 PM

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