Today is the 26th anniversary of the Roe v. Wade Supreme Court decision in the United States, which, for all intents and purposes, legalized abortion-on-demand up until birth (though later court decisions were required to make clear that this is what it did). It is seen as a day of mourning and penance in the Catholic Church. In honor of it, I’m going to write a post about abortion.
Recently, I’ve more and more seen pro-choice advocates use this following rhetorical strategy. Pro-choicer: “So, if abortion was outlawed, what would be the punishment for it? Would you try the mother for murder?”
Pro-lifer: “Um…” Pro-choicer: “Aha! See, you realize it would be absurd to try the mother for murder; doesn’t that mean abortion is in fact no such thing?”
A tricky question, this one… it takes advantage of the fact that abortion is currently legalized, and many women have had them. If the pro-lifers say “yes, we would try the mothers for murder”, it sounds as if they are condemning every woman who has ever had a legal abortion as an illegal murderer. Obviously this wouldn’t go over very well. And many pro-lifers are simply too focused on getting abortion illegalized to think about what would happen once it was; they themselves perhaps haven’t thought through the distinction between women who have abortions today and hypothetical women would have hypothetical abortions once it were illegal. But that doesn’t mean there isn’t a coherent, reasonable, and just pro-life explanation for what would happen to a mother who had an abortion after it was outlawed.
Firstly, if abortion were outlawed, all the abortion clinics would be closed and easy access to abortion would be cut off. At this point no one could say they did not know abortion was illegal, and it would be just to punish them for it – while it would not be just to punish anyone who has had an abortion under the current state of affairs. This is something that would need to be made clear. It’s a similar situation to how slavery was abolished in the US; current slave-owners were not punished except by the loss of all the property they held in slave form, but if anyone tried to hold slaves in the US today, they would be punished, and severely. I wonder, did anyone in the pre-Civil War era use the argument, “so how would you punish slave-owners?”
So the abortion clinics are gone. But there would probably still be doctors performing abortions. In these cases, the doctor, not the mother, would be the murderer. The main focus would be on shutting down the doctors who perform the abortions. They would be tried for murder. As for the mother, well, she would probably have to be somehow punished… but to what extent? To the same extent, no more but not less, than if they had committed infanticide. I’ve read that if a mother commits infanticide it is not seen as the same as murder; it’s treated as manslaughter. Abortion would have to be punished in the same way.
Is this unduly harsh? I don’t know. Is punishing maternal infanticide with trial for manslaughter unduly harsh? I hope no one thinks so. But if infanticide had been legalized and people were trying to re-legalize it, people might still use the argument “so how would you punish the mother?” The answer would be the same as with abortion, but people would have the same aversion to saying so – because if infanticide were legal, the mother who killed her infant legally would be just as much a victim of the process as the child himself.