Tricky Questions

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.

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8 Responses to Tricky Questions

  1. Curious says:

    What about women who take abortifacients? Would you jail a teenager who took birth-control pills as a morning-after emergency contraceptive? Or a woman who takes mifepristone that she gets from a friend in Europe?
    It seems prosecuting doctors who perform abortions as murder and prosecuting women who perform an abortion as manslaughter is a double standard — are women not just as capable of being fully culpable for the same crime as men?
    Just my thoughts.

  2. I would be in favor of on paper having criminal penalties consisting of jail time for women who take abortifacients, take birth control pills as morning-after contraceptives, etc; I suspect that in practice such cases would rarely result in convictions and thus almost never go to trial, which I would also be in favor of.

    (Unless social mores changes to the point where such actions were seen my the overwhelming majority as actually being murder – which IMO they are – in which case I would be in favor of jail time for those situations.)

    The basic point is that these questions conflate two different issues – whether the action deserves a certain punishment, and whether it is just to inflict that punishment on someone when the prevailing societal norms say that the action is OK. I think that the action does deserve that punishment, but also that while society views them as acceptable (whether or not they’re illegal), it’s unfair to punish only the people who perform them.

    Regarding prosecuting doctors who perform abortion to a greater degree than the mothers are prosecuted; it has nothing to do with misogyny. As far as I know, there are female abortionists out there. It has to do with *pregnant* women (and mothers of newborns) being in a special situation mentally as well as physically, and thus deserving special attention and not as severe punishment.

    If you would argue against a lesser punishment for the mother than for the doctor, would you also argue against lesser punishment for maternal infanticide than for a third party who came in and killed a newborn child?

  3. Curious says:

    Yes, if abortion was made illegal, I would argue against a lesser punishment for maternal infanticide than for a third party who came in and killed a newborn child. Abortion is not an activity that’s solely advanced by the medical profession alone — it’s actively supported by women, women who are capable of making entirely rational decisions. (Not all pregnant women are rational, of course, but I would say the vast majority are. Pregnancy does not make one any less responsible for one’s actions, no matter how romantic we try to make pregnancy and pregnant women out to be.)

    I’m not someone who thinks that pregnant women are any less capable of understanding criminal laws than doctors. I guess I’m trying to look at this from a pro-life perspective — if a woman voluntarily provides her one-year-old baby to a murderer and the child dies, then the woman would be charged with murder – she is a direct participant in that child’s death. If she visits a clinic to have an abortion (or flies to Mexico to have one performed, which many more-well-off mothers will do), she will be charged with manslaughter? I thought a fetus was an unborn child. Where would a woman’s role in an abortion turn from manslaughter to murder?

    If you’re willing to put abortion down in law as murder, you need to treat all participants in that murder with the penalties of murder. It’s an unpopular position, politically, as you can see from the hesitancy to discuss punishment by those pro-life women in that video that’s going around. But I don’t see how you can logically and non-sexistly (is that a word?) remove any greater culpability for the murder, if you call it that, of a fetus by a woman than by a doctor.

  4. I mostly want to be sure that abortion is treated legally in the same manner as infanticide. I admit I’m not really sure why maternal infanticide is not treated exactly the same as murder. (Since infanticide by a third party definitely is.)

    The greater problem, obviously, is that just outlawing abortion as murder won’t change people’s minds, and so many people will see the punishment as far outweighing the crime. Such a situation would be similar to what we have with illegal file sharing nowadays – millions of people do it, its generally socially acceptable, but a handful of people are sued each year for hundreds of thousands of dollars. I think that’s obviously not desirable.

    Such practical considerations as these are why I think a lesser punishment for the mother would probably be practically necessary, even if it isn’t 100% just. And I don’t see anything necessarily wrong with that, in any case; criminal law is intended primarily to protect society, not to mete out justice (IMO that’s God’s job), so if it’s better for society not to punish certain crimes as much as they “deserve”, I’m OK with that.

    But if we’re going to get into what the purpose of criminal law is – justice or the good of society – that’s probably a whole different post…

  5. e7th04sh says:

    Stick to your morality, Turin, if something has to be said, say it. Mother, whose reasoning leads her to having her child killed, should be punished like any other murderer. However, we can introduce extanuating circumstance, of not being fully aware of the consequences.

    I think i will write about abortion some time soon. Complicated stuff.

  6. Curious says:

    “criminal law is intended primarily to protect society, not to mete out justice”

    Good golly, then why make abortion illegal at all? Society could get along just fine with abortion or even infanticide. It’s a sense of justice that drives the defenders of the unborn, isn’t it?

    Maybe you do need to address that in a different post! :)

  7. Since, if abortion is in fact murder, it is the killing of a *person*, then having abortion legal is a failure in the worst way to protect society; you’re legalizing the killing of millions of its members. But the illegalization of abortion isn’t intended primarily to punish the people who have abortions – it’s intended primarily to protect the unborn.

    That’s not to say that justice isn’t a concern at all, but it’s not the primary concern, IMO.

    Yeah, I probably need to make a different post about this.

  8. e7th04sh says:

    Interesting, you said you don’t appreciate voting results, for Obama’s pro-“coice” tendencies.. Well, it seems, accroding to Catholic Church’s poll, that around 80% of your fellow countrymen are against abortion. If only they had their priorities like you have, Obama wouldn’t stand a chance. Or perhaps it’s just their political ignorance…

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