Politics & Policy

One Untrue Thing

Life after Roe.

Anna Quindlen’s column in Newsweek this week is titled “How much jail time?” and argues that pro-lifers are dodging the issue of jail time for women who seek abortions. She concludes: “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. You can’t have it both ways.”

Knowing Quindlen isn’t the first and won’t be the last to ask the question, National Review Online asked a group of pro-life experts: Is “How much jail time?” a key question pro-lifers ignore when discussing abortion and life after Roe?

Hadley Arkes

Once again we find ourselves twitted by the partisans of abortion to show our own seriousness by our willingness to punish in the severest way the taking of an innocent life. Is the implication that, if we use a gentler hand, we must not really think that human beings are being killed in these surgeries? It has apparently escaped the notice of Ms. Quindlen that the law does not need to invoke the harshest penalties for the sake of teaching moral lessons. The point may be made at times with gentler measures. In the tradition of legislating on abortion, a certain distinction was made out of prudence: On the one hand there may a young, unmarried woman, who finds herself pregnant, with the father of the child not standing with her. Abandoned by the man, and detached from her family, she may feel the burden of the crisis bearing on her alone, with the prospect of life-altering changes. On the other hand, there is the man trained in surgery, the professional who knows exactly what he is doing — he knows that he is destroying a human life, either by poisoning a child or dismembering it. And in perfect coolness and detachment, and at a nice price, he makes the killing of the innocent his office-work. Certain women may indeed be guilty of a callous willingness to destroy a child for the sake of their own self-interest. But the law makes a prudent, tempered choice when it makes the abortionist the target of its censure and brings solely upon him the weight of the punishment.

– Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

Dorinda C. Bordlee

“How much jail time?” is a contrived question that is both deceptive and desperate. It is deceptive because it ignores the fact that the American pro-life movement has consistently considered the woman as the second victim of abortion. The abortion ban enacted in South Dakota, as well as the abortion bans with post-Roe activation clauses enacted in recently in Louisiana and several other states, explicitly state: “Nothing in this section may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.”

The question “How much jail time?” is also a desperate attempt to distract the public from what they have learned about the crime against humanity known as partial-birth abortion, in which a child’s brain are suctioned out while only inches from complete birth, and about the most common methods of abortion, which involve ripping the unborn child from the womb piece by piece.

A more appropriate question is: How much jail time we should impose on abortion providers who financially benefit from the plight of women who are abandoned by those who should be caring for them and their unborn children? How much jail time is appropriate for abortionists who expose women to startling increased risks of breast cancer, problems with future pregnancies, and a three to six times increased risk of suicide? How much jail time for the destroying the lives of countless women and children?

– Dorinda C. Bordlee is executive director of the Bioethics Defense Fund.

Marjorie Dannenfelser

What an ingenious strategy from the National Institute for Reproductive Health and their friend Anna Quindlen. Only the best inside-the-Beltway political gurus could route out such a good fear and panic-tinged wedge issue. But alas, their complete cognitive dissonance when it comes to understanding abortion opponents will defeat them. They hope to prop up the stereotype of abortion opponents as harsh, uneducated, unfeeling Neanderthals who either want to punish women or who are legal idiots not willing to accept the consequences of their position.

But “Just pray for them” is exactly what will continue to emanate from the “national conversation” they seek to ignite. Compassion for mother and child will continue to dominate YouTube and any other outlet where Quindlen or her friends hope to “out” abortion opponents. My guess is that as soon as this happens the “conversation” will go mute.

The fact of the matter is that compassion for women before abortion was legal and compassion for them after unborn protections are enforced will drive the law. The focus of such laws is on protection, not punishment. Women were not punished by the legal system before 1973’s Roe v. Wade decision and there is absolutely no drive to punish her now. While the position may be counterintuitive to some, it is clearly a uniquely American case of handling a delicate and tragic situation with sensitivity.

– Marjorie Dannenfelser is the president of the Susan B. Anthony List.

Pia de Solenni

Anna Quindlen asks a difficult question in hopes that pro-life advocates won’t answer with the reality, namely the scientific fact that human life begins at conception. Pro-life advocates generally stay away from the question of how much time a woman should serve for having an abortion because they’re fighting a battle that is both moral and political. Quindlen wants a strictly legal battle, no morals please.

However, that tends to make us uncomfortable since we recognize the fact that many girls and women have abortions because they feel as if they have no choice, especially when health and legal authorities fail to tell them otherwise. Laws are intended, in part, to show people just how far they can go before they’ve gone too far. Without these guidelines, anything goes. If the law were to identify abortion for what it is, most people would be very uncomfortable to face that reality. So long as we allow red herrings, not unlike Quindlen’s question, we continue to hide the truth that abortion is murder. Like murder, circumstances and intention play a role; but they do not hide the reality that an innocent human life has been destroyed.

Pia de Solenni is based in Philadelphia, Pa., and is the head of Diotima Consulting.

Joseph Dellapenna

Anna Quindlen concludes her article by arguing that one must either hold women criminally accountable for an abortion or refuse to criminalize abortions. She also insists that to consider any other option would be to infantilize women, assigning them to a subordinate place to the men who do the abortion or the men who pressure them into having the abortion. This is an appealing argument, but it evades a number of hard facts that demonstrate that the matter is not so simple as her reasoning suggests.

Until less than a century ago, abortion under the best of circumstances was an extremely dangerous activity and under less than ideal circumstances was tantamount to suicide. As a result, a strong tradition arose that women were victims of the abortion and not perpetrators. Moreover, if the woman were a criminal co-conspirator with the abortionist, in the common law tradition the abortionist could not be convicted on the basis of the woman’s uncorroborated testimony — and all too often there were no other witnesses and no other evidence. This problem was also solved by treating the woman as a victim rather than as a co-criminal. Thus none of the laws overturned by Roe v. Wade (that is, the abortion laws of every state) treated the woman as a criminal.

Should this tradition be carried forward if Roe v. Wade were overturned? Usually abortion is safe for the woman today and the woman chooses to have the abortion, rather than having it forced upon her. The special cases of women (whether adults or minors) who are literally forced into an abortion could perhaps be dealt with by special legislative provisions. Yet the situation is not so simple. Significant evidence led one sociologist to conclude that “the attitude of the man is the most important variable in a woman’s decision to have an abortion.” Sorting these questions out could lead to the conclusion that enough doubt exists that a woman should not be sent to prison for undergoing an abortion.

Beyond the woman herself, there remains the abortion industry — a billion-dollar-a-year industry that some, at least, see as preying on women nearly as much as it preys on unborn children. Despite all the changes in the realities of abortion over the last century, it remains as true today as it was 200 or 400 years ago that going after the woman seems less important going after the industry. It is no more inconsistent to criminalize the abortionist and not the woman having the abortion than it would be to decriminalize the use of certain recreational drugs (say, marijuana) while vigorously pursuing the drug dealers — even though most drug users exercise a significant element of choice in using the drug.

– Joseph Dellapenna is professor of law at Villanova University School of Law and author ofDispelling the Myths of Abortion History.

Clarke D. Forsythe

Contrary to the pervasive myth that women were prosecuted for abortion before Roe, consistent state abortion policy for a century before Roe was not to prosecute women. Abortionists were the exclusive target of the law. That was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of abortion, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

In fact, the irony is that in nearly all of the reported court cases explicitly addressing the issue of whether a woman was an accomplice to her abortion, it was the abortionist (not the prosecutor) who pushed the courts to treat the woman as an accomplice, for the obvious purpose of undermining the state’s criminal case against the abortionist (including the abortionist Ruth Barnett when Oregon last prosecuted her in 1968).

Leslie Reagan, in her 1997 book When Abortion Was a Crime, admits that states did not prosecute women for their abortions and concedes that the purpose behind that law was not to degrade women but to protect them.

The wisdom of not prosecuting women was based on extensive practical law enforcement experience in many states, over many years. It will certainly be influential with prosecutors and state policy makers when Roe is overturned, and that should be the policy of legislators who are interested in the effective enforcement of abortion law.

But Quindlen’s strawman implicitly relies on another myth — that “overturning” Roe will result in the immediate re-criminalization of abortion. In fact, if Roe was overturned today, abortion would be legal tomorrow in at least 43 states, if not all 50. That’s because almost all pre-Roe laws have been repealed. There will be no prosecutions of abortionists unless the states pass new laws after Roe is overturned.

– Clarke D. Forsythe is an attorney and president of Americans United for Life.

Matthew J. Franck

Anna Quindlen is right that most pro-lifers haven’t given much thought to the question “How much jail time?” for women who have abortions. That’s because the Supreme Court hasn’t let us get to the point where we need to consider it; we’ve been busy making the arguments that would free us to do so.

Quindlen dares us to treat women who have abortions harshly, saying logic requires it. Like others who employ this “gotcha,” she is guilty of the fallacy of complex question — treating a compound question as though it were simple. The proper approach (after Roe) is to ask, what policy would reduce the number of abortions as much as possible now? For 34 years, American women have been taught that their unborn children have no claim on them — mere lumps of tissue to be discarded if inconvenient. If the law is to recover its sanity, it will have to proceed by degrees, forbidding what it can and enforcing its prohibitions by the mildest punishments sufficient to achieve the desired results. Consciousness of abortion’s wrongness will not be rebuilt overnight. It is plausible that we could begin by reducing the number of abortions in America by 90 percent with zero jail time for any woman who obtains one. In a more just society a generation or two after Roe, further reductions might require stronger laws. But by then, such laws would once again be tolerable and recognized as just. Which is to say, the law must be prudent, not the product of sophomore logic.

– Matthew J. Franck is professor and chairman of political science at Radford University and a regular blogger at NRO’s “Bench Memos.”

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.

Kristin Hansen

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.

Anne Hendershott

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.

Wendy Long

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.

Frederica Mathewes-Green

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.

Tom McClusky

Anna Quindlen’s smug musings remind me of the befuddled New York socialite who, after Ronald Reagan’s win in 1980 said, “But I don’t know anyone who voted for him!” Quindlen, a New York socialite herself, seems to indicate she doesn’t know any pro-life people. I count many pro-lifers as friends (as well as some pro-abortionists whom I politely describe as “confused”), and the only ones that seem to be talking about jailing women are pro-abortionists and/or smug New York City based columnists. In fact, the Family Research Council has consistently supported legislation that protects the expectant mother and her child; we have also called for case studies of postpartum depression in women who have had abortions (a measure introduced by the great Rep. Joe Pitts (R., Penn). Our main opposition in getting these pro-women initiatives into law tends to be pro-abortionist groups like Planned Parenthood. In the U.S., laws against abortion have always targeted the abortionist, never the woman. To suggest that women be criminalized for having an abortion is rather ludicrous. U.S. law gives the abortionist the final say about whether the abortion will happen or not and additionally gives him the right to profit from it. The act of abortion itself is exploitive of the woman even as it kills the child.

Tom McClusky is vice president of government affairs for the Family Research Council.

Michael J. New

“How much jail time?” is indeed a key question pro-lifers ignore when discussing abortion and life after Roe. However, not in the way that Anna Quindlen thinks. In a post-Roe America, strategies for the effective and consistent enforcement of pro-life laws will take on a renewed importance.

In my research on pro-life legislation, I find that public-funding restrictions are the most effective legislative strategy for stopping abortion. This is partly because public-funding restrictions are largely self enforcing. Other kinds of pro-life laws require abortion providers to essentially police themselves. Now, the threat of criminal and civil penalties might provide an incentive for the enforcement of some laws. However, it is easy to see how some abortion providers will flaunt the law — especially if the governor in their state is not sympathetic to abortion restrictions.

Indeed, the damage done by Roe vs. Wade went beyond the legalization of abortion in all 50 states. Roe gave abortion-rights mainstream political credibility and shifted sexual and cultural mores in such a way as to make the enactment of pro-life laws more difficult. Now, the reversal of Roe would do considerable good for the pro-life movement. It would further stigmatize abortion and remove judicial barriers from the enactment of pro-life legislation. However, overturning Roe is only the first step. Indeed, enforcing pro-life laws and changing the culture are battles that will engage the right-to-life movement for years to come.

– Michael J. New is an assistant professor at the University of Alabama.

Ramesh Ponnuru

The argument Anna Quindlen makes deserves an extended response. (How’s that for a statistically improbable phrase?) As it happens, I have just started work on an essay on the question of what criminal penalties logically follow from pro-life premises.

As Justice Blackmun noted in Roe, many states’ anti-abortion laws did not impose criminal penalties on the women who sought or obtained abortions. Like Quindlen, he assailed this feature of the laws as irrational. I believe that it was and is rationally defensible: that pro-life premises do not require (or, for that matter, preclude) criminal penalties for these women. They do not even require (or preclude) criminal penalties for the abortionist.

For now, let me just say this in defense of this conclusion: The crucial legal goal of the pro-life movement is not any particular set of punishments. It is that unborn children be protected in law. We could, for example, eventually secure laws that prohibited most abortions, that removed the medical licenses of doctors who committed illegal abortions, and that imposed fines on people who committed them without medical licenses. If that legal regime sufficed to protect unborn children, there would be no need to go further. The lack of jail time, I trust, would not stop Quindlen from opposing such laws. Indeed, she would probably not want to let such laws be enacted democratically. — Ramesh Ponnuru is author of The Party of Death.

O. Carter Snead

Quindlen’s argument is profoundly confused. At one moment, she demands indignantly that pro-lifers defend an imagined post-Roe law that condemns women to prison. In the next breath, however, she bitterly complains that current abortion bans regularly immunize women from criminal liability (thus rendering the question of “How much time?” unintelligible.). So, are pro-lifers authoritarian brutes who will throw women in jail, or paternalistic softies who treat women with kid gloves? As Quindlen says, “you can’t have it both ways.”

Quindlen’s legal arguments are even more puzzling. There is no “logical necessity” that ties the hands of lawmakers from invoking the familiar concept of immunity. One can imagine several perfectly defensible reasons for pro-life legislators to target abortionists rather than women. For one thing, abortionists are arguably more culpable in principle: they directly perform the lethal action; they are more fully aware that they are snuffing out a human life in process; they are not laboring under any duress; and they perform abortions for profit. As a prudential matter, prosecuting abortionists seems a sufficient means to ending the practice of abortion. Also, abortion is like a vice crime in that there is not likely to be a complaining witness. Immunizing one of the parties removes a powerful disincentive for confessions. Finally, it does seem that the public is more willing to accept a law that punishes doctors rather than mothers. Pro-lifers can thus achieve their goal of ending abortion without provoking a political backlash. That is neither unprincipled nor unwise. Frankly, it seems like good politics for a pluralistic society.

– O. Carter Snead is an associate professor of law at Notre Dame.

Walter M. Weber

Anna Quindlen says, “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. You can’t have it both ways.” Wrong.

First, Quindlen ignores history. Roe v. Wade was not decided until 1973, yet I’ve never heard of any women being locked up for abortions before then. If there were, you can bet groups like Planned Parenthood would trumpet the evidence.

Second, Quindlen ignores law-enforcement priorities. It makes far more sense, for example, to pursue the drug pushers, who do widespread harm, than drug users, who inflict harm mainly on themselves. Does this mean drug abuse is not illegal? No, it just means that striking higher up the food chain makes eminent sense. The same common sense points to targeting abortionists, not women.

Third, Quindlen ignores human reality. Yes, I suppose there are women who have abortions for truly despicable reasons, like spite or sex-selection. But many women (I’ve read affidavits and testimonies from plenty) have abortions because they are coerced by boyfriends, bosses, parents, etc. They are the second victims of abortion. To treat them as equally culpable with the professional abortionist is ludicrous and heartless.

Walter M. Weber is senior litigation counsel for the American Center for Law and Justice.

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