Understanding Duress Provisions in Prenatal Equal Protection Legislation

By Bradley Pierce

A duress defense distinction is still equal protection; the rationale behind the duress defense exception does not apply to an abortion situation. The different application is due to physiology rather than partiality.

Introduction

Equal protection bills drafted by the Foundation to Abolish Abortion sometimes contain a clause providing a legal defense to mothers who participate in their child’s abortion while under duress. But what exactly do these clauses mean? Why do they appear in some bills but not others? And do these clauses undermine our claim that the bills provide equal protection of the laws?

What is a duress defense?

The laws of all fifty states in the U.S. recognize the defense of duress. This legal concept is sometimes called by other names, such as compulsion. At least one state calls it coercion, but most states differentiate coercion to refer to a concept involving much less pressure, and which is not a defense to a criminal act.

Although states may word it slightly differently, the duress defense is typically available when Person A was threatened by Person B with imminent death or serious bodily injury if Person A did not commit a criminal act, and Person A had no reasonable opportunity to escape the threatened harm.

This defense is not a modern innovation. It has been part of our Western common law judicial precedent since even before the founding of America.

Under this defense, even if Person A technically did commit a crime, he should still be found not guilty because he acted under duress imposed by Person B. Consider these examples:

Example 1: Two masked individuals enter the back seat of a random car and order the driver at gunpoint to take them to a local convenience store. The driver complies. At the store, one masked individual robs it and returns to the car. The driver is then ordered to transport the perpetrators to a bus station, where they exit. Technically, the driver has committed a crime by aiding and abetting a robbery and serving as a getaway driver.

Example 2: A bank teller is approached by an armed individual who points a gun at her and demands all the money from her drawer. She complies, and the perpetrator leaves. Technically, she has engaged in embezzlement by taking her employer’s assets and giving them to another person.

In both examples, although both the driver and teller engaged in conduct that met the technical definition of criminal acts, they did so under threat of immediate death, either stated or implied. As a result, if they had no reasonable opportunity to escape, they have a valid defense of duress and should not be considered guilty of the crime.

Could these individuals have resisted? Certainly, but at significant risk to their lives. While heroism is celebrated, it is not legally mandated. The existence of the legal defense does not necessarily mean society is approving of their actions. It simply means that society does not treat what they did as a crime. This is why duress is generally described as a legal excuse, and not as a justification.

Can duress be a defense to murder?

But what if the crime committed is murder; is duress also a defense to murder?

The answer to this question varies by state. In some states, duress is a defense to any crime. In most states, duress is a defense to any crime except murder.

So if duress is considered a defense to a murder charge in some states, why is it not in others?

Under common law, duress was not treated as a defense to intentional homicide. In his Commentaries on the Laws of England, William Blackstone stated the rationale behind this exception to the duress defense: “Though a person be violently assaulted, and has no other possible means of escaping death but by killing an innocent person; this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent.”[1]

Today, many states maintain this exception to the duress defense either because those states still operate under the common law or because they have explicitly codified the exception into their statutes.

However, some states no longer recognize an exception and have instead adopted the American Law Institute’s Model Penal Code approach, which provides that duress is a valid defense to any crime, including murder.[2]

Should the duress defense murder exception apply in an abortion situation?

So in states where duress is a valid defense to any crime, including murder, equal protection of the law would be that duress should be a defense to prenatal murder too. This is why the bills we draft in those states do not mention duress. When something is already the law, it does not need to be in the bill.

But what about states that do have a murder exception to the duress defense? Would providing equal protection of the law mean that there should be no duress defense to prenatal murder too? While at first reaction it would seem like the answer should be yes, we need to examine the rationale behind the exception to understand whether it should actually apply.

In states that reject duress as a defense to murder, the reason discussed above is that someone “ought rather to die himself, than escape by the murder of an innocent.” However, the rationale for this exception is always discussed in the context of born persons. But does it apply in the same way when the person killed was inside the body of the one being threatened?

The Preborn Child Would Not ‘Otherwise Be Safe’

Legal scholar Wayne LaFave notes that states which do not allow duress as a defense to intentional homicide do so because the victim of the homicide is someone “who would otherwise be safe.”[3]

This is the key point that differentiates a pregnancy situation from others.

In the case of a born child, when a mother refuses to murder her five-year-old child when threatened with death if she does not, she sacrifices her own life to save her child’s life. Her five-year-old “would otherwise be safe” if she gave her own life instead of taking his.

However, this is not true in the case of a preborn child.

In the case of a pregnant mother, if the mother is threatened with death if she does not kill her preborn child, and if she is killed after resisting the duress, the preborn child would not “otherwise be safe.” Both would die.

This is because the life of the mother is physiologically connected with the life of the child. The life of the child is dependent upon the life of the mother in a unique way that does not exist in other circumstances.

The rationale for the murder exception to the duress defense is that instead of taking someone else’s life to save your own, you should sacrifice your own life to save the life of the other. But this clearly is not the case in the situation of a pregnant mother with regard to her preborn child. Therefore, the murder exception to the duress defense should not apply here because the rationale behind it does not apply.

The Timing Is Different

There is another, though lesser, distinction also worth noting. The situation where duress would be most likely to occur would be with an abortion performed via medication—abortion pills.

In a surgical abortion situation, the mother likely has many opportunities to escape because the abortion is taking place at a clinic or hospital, away from the person doing the threatening. So because she has reasonable opportunities to escape, the duress defense would not apply.

But with a pill abortion, the person threatening the pregnant mother could be in her home standing next to her with a gun literally pointed at the mother’s head if she does not take the abortion pill.

Why is this distinction important?

Because the mother may commit the act of homicide—taking the abortion pill—with the hope that the person putting her under duress will leave. At that point, she may have the opportunity to regurgitate the pill or attempt the abortion pill reversal protocol.

If she did so, and despite her best efforts her baby still died, extending the duress defense to that situation would relieve her of legal liability. If she did not attempt these live-saving actions, that would undermine her claim of duress.

But maintaining the duress defense exception could potentially mean that even though she took the actions she did with the hope it would actually save both of their lives she would still be considered a murderer under the law.

Ultimately, the rationale behind the exception in some states to the duress defense does not apply to an abortion situation because of the physiological connection between the body of the mother and the body of the child. As a result, because the rationale behind the exception of saving the life of the third party would not apply, the exception to the duress defense should not apply.

How would a duress provision work in an abortion case?

In equal protection legislation drafted in states with an exception to the duress defense, a very narrowly-tailored duress provision is included, which typically reads as follows: “The defense of duress is a valid defense to homicide where the victim is a preborn child and the defendant is the child’s mother if the defendant is the object of the threat and the elements of duress otherwise exist.”

Duress is not something that a defendant can just make up after the fact. Generally speaking, in the case of a mother who aborted her child, she would have to prove the following:

1. There was a present, immediate, or impending threat of death or serious bodily injury to the defendant if the defendant did not commit the crime;

2. The defendant had a well-grounded fear that the threat of death or serious bodily injury would be carried out; and

3. The defendant had no reasonable opportunity to escape the threatened harm.[4]

Another fact the justice system may consider is whether, once she reached a point of safety, the mother had immediately reported to law enforcement that someone had compelled her to abort her preborn child.

Finally, mere pressure or nonviolent coercion would not constitute duress, even for an abortion. For example, if a male partner threatened to end the relationship or sever financial support unless the mother took abortion pills, this would not constitute duress. Of course, she could still explain this to the prosecutor who may choose not to prosecute or who may choose to give her immunity to testify against the male partner who coerced her. Or she could testify about this to the grand jury or trial jury, which may choose to show leniency. But since she was not being threatened with imminent death or serious bodily injury, the defense of duress would not excuse her crime.

Conclusion

The duress provisions in legislation drafted by the Foundation to Abolish Abortion maintain equal protection principles.

In states that do not allow a duress defense for intentional homicide, the underlying rationale is that it permits the threatened person to sacrifice himself or herself to save an innocent person “who would otherwise be safe.” Since this rationale does not apply in pregnancy cases, where both lives are uniquely connected, including a narrowly-tailored duress provision is consistent with the principles of equal protection.

While the application of law may differ between an abortion and other homicide cases, this difference stems not from partiality but from the unique physiological relationship between mother and preborn child. The same underlying legal principles are still applied equally, consistent with equal protection of the laws.

NOTES:

1. 4 Blackstone, Commentaries on the Laws of England, p 30 (paraphrasing Matthew Hale, 1 Hale, History of the Pleas of the Crown, p 51).

2. Model Pen. Code, § 2.09.

3. Wayne R. LaFave, Criminal Law, 5th ed. (Saint Paul, MN: West Academic Press, 2010), 526.

4. For an example, see Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, 2022 Edition (Last Updated Nov. 2024), § 5.7.