Repeating Roe: How the Pro-Life Establishment Is Making the Same Fatal Mistake—Again

Roe pointed to maternal immunity to deny personhood. Today’s pro-life laws are rebuilding that same scaffold in a pill-driven world.

For fifty years, defenders of the unborn rightly pointed to Roe v. Wade as a lawless, deadly decision. But Roe did not hang in thin air. The Court leaned heavily on the way our own laws treated abortion—especially the way they treated the mother.

Here is the uncomfortable truth: on one crucial point, much of today’s pro-life establishment is walking in Roe’s footsteps, not correcting them. They say “life begins at conception.” They say “abortion is murder.” Yet they demand that civil law never treat the mother as a responsible moral agent in any abortion.

That moral and legal contradiction is precisely what Justice Blackmun used to deny unborn children personhood in 1973. If we keep that contradiction in place—especially in a world of telemedicine and mail-order abortion pills—the consequences this time may be even deadlier.

1. What Roe Actually Said About Personhood

In Roe, Texas argued that the unborn child is a “person” under the Fourteenth Amendment. The state and its allies laid out detailed scientific evidence of fetal development. Blackmun did not brush that aside as crazy. He admitted that if unborn children are constitutional persons, the abortion case “collapses,” because a person’s right to life cannot be taken without due process.

But instead of accepting that logic, the Court took a different path. It surveyed the Constitution’s use of the word “person” and concluded that, in practice, the term had always been applied post-birth. Looking at historical practice in areas like tort law, inheritance, and wrongful-death statutes, the Court claimed that the unborn had been recognized only in narrow, conditional ways—usually with rights that depended on being born alive.

From that, Roe concluded that “person” in the Fourteenth Amendment does not include the unborn and that “the unborn have never been recognized in the law as persons in the whole sense.” So Roe did two things at once:

• It acknowledged that personhood for the unborn would make abortion unconstitutional, and
• It insisted that, historically, the law never treated unborn children as true “persons.”

The key question then becomes: why did Blackmun believe the law did not truly treat them that way?

2. How Roe Used Maternal Immunity Against the Unborn

Roe spends pages on the history of American abortion laws. One of the most important observations is this: in many states, including Texas, the pregnant woman herself could not be prosecuted—not for self-induced abortion, and not for cooperating with someone else who performed it.

Later in the opinion, Blackmun circles back to that fact and uses it as ammunition against the claim that unborn children are persons. He notes that:

• Texas claimed the fetus is a Fourteenth Amendment person.
• Yet under Texas law, the woman was not treated as either a principal or an accomplice in the crime of abortion.
• Penalties for abortion were also much lighter than for murder of a born person.

If the unborn child really were a constitutional person, the Court asked, why would the law exempt the mother completely and punish abortion far less severely than homicide?

Roe’s answer was simple: because the law didn’t truly see the unborn as equal persons. Instead, Blackmun framed abortion laws as largely paternalistic—protecting women from a dangerous procedure, not punishing them for killing a child.

In other words, maternal immunity and downgraded penalties were used to prove that unborn children were not full persons in law.

That’s the razor we have to face: either we treat the unborn child as a person in law, or we keep treating abortion as something less than the murder of a human being—and Roe’s logic will never truly be undone.

3. The Moral Inconsistency: Calling It Murder While Shielding One Key Actor

Most pro-life Christians would say without hesitation that abortion is the unjust taking of innocent human life. Many even say, plainly, “Abortion is murder.”

If that’s true, then we have to reckon with what that means for everyone involved in that act. In the murder of a born child, the law asks:

• Who planned it?
• Who carried it out?
• Who paid for it or pressured it?
• Who was coerced or acting under duress?

We do not simply declare entire classes of adults immune from responsibility. We don’t say, “Because the mother was under pressure, she can never be investigated or charged under any circumstances.” We look at the facts, the intent, the coercion, the capacity—all the things justice always considers.

Right now, large parts of the pro-life establishment are insisting that, when it comes to abortion, the mother must always be treated only as a victim and never as a responsible moral agent. That message is repeated in public statements and codified in model legislation that explicitly exempts mothers from criminal liability.

We absolutely must acknowledge:

• Some women are bullied, lied to, or outright forced into abortions by partners, parents, or traffickers.
• Some are deeply misled by doctors, media, or “counselors” who hide the truth.
• Many carry crippling guilt and trauma afterward.

But we already have categories in law for that: duress, diminished capacity, mitigating circumstances, degrees of homicide, wrongful influence, and so on. Equal protection does not mean everybody gets the same charge and sentence every time. It means you do not carve out a special class of people who are legally untouchable no matter what they do.

If abortion is what we say it is—the intentional killing of a child—then insisting that the mother can never bear any legal responsibility is morally inconsistent. It sends at least three terrible messages:

• To the unborn child: “Your life is not worth the same protection as a born child. The main person who consents to your death is legally untouchable.”
• To the mother: “You are not a full moral agent when it comes to your own child; the law will treat you more as a permanent victim than as a responsible adult.”
• To the culture: “Even we who oppose abortion don’t really believe it’s the same as killing a born child. We want different rules, different penalties, and permanent exemptions.”

That is exactly the kind of double standard Roe seized upon to deny personhood in the first place.

4. We Are Not Talking About Retroactive Witch-Hunts

Immediately, people ask, “Are you saying we should round up every woman who has ever had an abortion and throw her in prison?”

No.

Equal protection and personhood are about how we structure the law going forward, not retroactive vengeance. In any just system:

• There is no punishment without law: you don’t criminalize past acts under future statutes.
• Each case is investigated on its own facts: who knew what, who did what, who pressured whom.
• Coercion, threats, abuse, and deception are taken seriously in charging and sentencing.
• Law can prioritize the worst actors—abortion businesses, traffickers, serial offenders—without pretending the mother bears zero responsibility in every possible case.

What we can’t do, if we’re going to be consistent, is write abortion laws that:

• Call the unborn child a “person,”
• Call abortion the unjust taking of that person’s life, and
• Then grant permanent, categorical immunity to one of the main actors in every abortion.

That’s the inconsistency Roe pointed out. Keeping that inconsistency now under a “pro-life” label only weakens the case for equal protection and personhood.

5. The Pro-Life Establishment Is Repeating Roe’s Logic

Fast-forward to today.

Mainstream pro-life organizations routinely issue statements along the lines of: “The woman who has an abortion should never be prosecuted; we will only seek penalties for the doctor.” Their model bills are drafted accordingly. When equal protection or personhood bills are introduced—treating abortion as homicide in principle and allowing the law to consider the role of every adult involved—these same groups often oppose them or testify against them.

In terms of legal structure, that is exactly the pattern Roe described and used against personhood:

• The law singles out the provider as the “real” criminal.
• The mother is declared off-limits as a principal or accomplice.
• Penalties are often placed in a separate “abortion” category instead of the homicide code.

If we truly believe unborn children are equal image-bearers, with the same right to life, then writing laws that deliberately treat their killing as something less than homicide repeats Roe’s own logic—only now with a “pro-life” label.

It also hands ammunition to abortion advocates. They can say, with some plausibility: “Even pro-lifers don’t want women treated like killers, because deep down they know abortion isn’t the same as murder.” The more loudly we insist on maternal immunity, the more we reinforce the lie that abortion is morally and legally unique—that it belongs in its own softer category.

6. The Telemedicine Reality: Why Maternal Immunity Means Permanent Loopholes

All of this would be serious enough in a world of brick-and-mortar clinics. But that world is disappearing.

Today, a growing majority of abortions nationwide happen with pills rather than surgery. Telehealth services write prescriptions online. Mail-order and shielded pharmacies send those pills directly to women’s homes. Even in states with bans, women are obtaining abortion pills from out-of-state providers and websites that deliberately ship into banned states.

Think about what that means if the mother is always legally untouchable:

• The pills are ordered online, often from outside the state or country.
• They arrive by mail.
• The abortion occurs in private, with no local abortionist present.

If lawmakers refuse even the possibility of holding mothers accountable, then there is no meaningful deterrent left. You might theoretically prosecute a distant doctor or an overseas website, but practically:

• The woman remains the only person inside your jurisdiction, and
• You have already promised never to treat her as having committed a crime.

In that world, it doesn’t matter how strong your constitutional amendment sounds. If a woman knows she can order pills from a shield-law state or overseas—and that her state will never treat her as responsible—then your “pro-life” laws are, in practice, unenforceable.

The numbers already bear this out nationwide: despite bans in multiple states after Dobbs, the total number of abortions has not dropped the way many expected. Telehealth abortions and mail-order pills are filling the gap. If we keep maternal immunity carved in stone, we are locking in Roe’s double standard while surrendering the field to a method of abortion tailor-made to exploit that loophole.

7. Where Do We Go From Here?

If we’re serious about abolishing abortion—not just regulating it—then we have to correct the very error Roe pointed out:

• We must affirm in law that unborn children are persons with the same right to life as born children.
• We must insist on equal protection, meaning homicide laws protect the unborn just as they protect born children, with the same range of degrees, defenses, and mitigating factors.
• We must reject any framework that categorically exempts one adult class (mothers) from ever being treated as responsible agents in the death of their child.

That does not mean we presume every post-abortive woman is a hardened murderer. It doesn’t mean we ignore coercion, abuse, or deception. It means we stop pretending that the only morally responsible actor is the abortionist, while the person who initiates, consents, and ingests the drugs can never be held accountable under any circumstances.

Roe exploited that contradiction to deny personhood and enshrine a “right” to kill the unborn. If the pro-life movement now codifies the same contradiction into its own laws and strategies, we are not merely preserving Roe’s logic—we are strengthening it in the age of telemedicine.

If we truly believe what we say—that life begins at conception, and that abortion is the unjust killing of that life—then our laws must finally match our words. Anything less is not justice. It’s politics. And unborn children will pay the price.

For more on how Missouri’s “New Amendment 3” keeps loopholes wide open—especially for abortion pills—be sure to explore our research and video series at act4mo.info/a3.