Richard W. Garnett
In “How Much Jail Time,” Anna Quindlen contends that, with respect to the question whether abortion should be criminalized, “there are only two logical choices: hold women accountable for a criminal act by sending them to prison, or refuse to criminalize the act in the first place. If you can’t countenance the first, you have to accept the second.” No, you don’t.
The point of criminalization, after all, is not merely to put people in prison, or deter people from engaging in harmful behavior. It is, instead, to make a statement — a public statement, in the community’s voice — that certain actions, or certain harms caused, are morally blameworthy. It is simply not the case that time in prison is the only way, or always the best way, to convey this social judgment.
It is this judgment — and not the particular way it is expressed, or even the consequences that follow — that best distinguishes the workings of the criminal law from, say, the law that governs compensation for accidents. And, it is not “hypocritical” — nor, contrary to Ms. Quindlen’s suggestion, does it “ignor[e]” or “infantaliz[e]” women — to think that the law may, and even should, give tangible expression to our commitment to the dignity of every human person — including unborn children — in ways that do not require prison terms for women who have abortions, or that treat them differently from doctors who perform abortions.
– Richard W. Garnett is a professor at the University of Notre Dame’s law school.
The reason pro-lifers appear taken back at this question is that they don’t relish the idea of anyone being thrown into jail. And, they envision the law protecting two people — both the woman and her unborn child — from the harmful effects of abortion and criminalizing those who actually perform it. Ask a woman holding an “I Regret My Abortion” sign this same question, and she would say, “I can’t imagine a worse punishment than the 20 years I suffered until I came to grips with my abortion.”
The question that should be asked is, “Will there be help for women facing these decisions if abortion is illegal?” The answer is yes. The network of 2,300 pregnancy centers will continue to exist in a post- Roe society. Women with unplanned pregnancies will always need support and resources, whether abortion is legal or not. Pregnancy centers offer a host of free services, including parenting and childbirth classes, job training, material resources, post-abortion care, and a network of community referrals to help plug women into a support system. It would be more productive to discuss how to reduce abortion by providing help to women in need rather than speculate about the future.
– Kristin Hansen is vice president of communications and center innovations for Care Net.
Anna Quindlen’s tired “false choice” is not surprising — abortion-industry reps have been demonizing the pro-life side for decades now. The truth is that the Quindlen crowd knows that the pro-life side is winning. The culture is changing as the pro-life side is gaining in numbers and winning the abortion wars through incrementalism, changing hearts rather than drastic changes in the law. Pro-lifers are not demanding that abortion be legislatively designated as murder. Most are not clamoring for criminalization. Rather, an increasing number on the pro-life side realize that incrementalism is resulting in victories like parental-notification laws or ultrasound requirements that can be sustained in public opinion. People — even some pro-choice people — are finally willing to talk about the negative side of abortion. They are repulsed by partial-birth abortion. They are beginning to admit, as the Feminists for Life tell us, “women deserve better” than abortion. No one wants to send a woman who has had an abortion to prison–she will suffer enough from her decision. When Roe v. Wade is reversed, it won’t mean the end of abortion. It will simply restore authority to the states to decide what can and cannot happen within their borders. Taking the discussions out of the courts and back to the realm of local policy, where we might once again debate the politics of abortion as neighbors and friends, would be a good start.
– Anne Hendershott is a professor of sociology at the University of San Diego and author of The Politics of Abortion.
There are a few facts that Ms. Quindlen ignores:
1. The matter about which the pro-lifers have “absolute certainty” is the simple truth that abortion is the killing of a human being. A tiny, innocent, helpless human being. They were obviously puzzled at the question about punishment for the woman because that is not their raison d’être. They want to peacefully show society the humanity of the unborn child.
2. The rapidly multiplying numbers of women in groups such as “Silent No More“ are moving testimony to the fact that abortion does hurt women, physically, emotionally, and spiritually.
3. Society’s judgment about the relative lack of culpability of the mother of an aborted child in no way undermines the humanity of that child. The law assigns differing degrees of culpability in various situations — including killing other people — all the time. If you kill someone in self-defense, you get zero punishment. It does not mean that the guy lying on your kitchen floor with a knife sticking out of his chest is not dead — or not human.
4. Most women who get abortions are under tremendous stress and pressure, and few of them recognize the full humanity of the child in utero. This goes to the woman’s mens rea and, accordingly, to the reasonable legislative judgment about the non-punishment of the mother. Our society instead has decided to punish the abortionist who profits from her, and her child’s, misfortune.
Ms. Quindlen, please plug these facts into your quadratic equation.
– Wendy Long is legal counsel to the Judicial Confirmation Network.
The goal of abortion laws is to stop abortion. And the person to stop is not the woman, who may have only one abortion in her life, but the doctor who thinks it a good idea to sit on a stool all day aborting babies. End the abortion business and you end abortion. The suggestion that it’s necessary to punish post-abortion women reveals a taste for vengeance.
Post-abortion women often make the decision in anguish or under compulsion. When I was researching my book, Real Choices: Listening to Women, Looking for Alternatives to Abortion, two of the women I interviewed told me that while they were lying on the clinic table they were praying that the boyfriend would burst through the doors and say “Stop, I changed my mind.” Women don’t need punishment. They need compassion and support in processing what was a miserable and possibly coerced decision.
Both sides agree that women don’t want to have abortions. And if women are doing something 3,000 times a day that they don’t want to do, what so-called “abortion rights” has won us is not liberation.
– Frederica Mathewes-Green writes on religion and culture.