Jonah posted an email raising two objections to my anti-abortion position. First, the e-mailer argues that it’s morally defensible to draw a line at birth. (The e-mailer may be under the misimpression that my argument in the book turns on the impossibility of drawing a defensible line between conception and birth. It doesn’t; that’s more in the nature of something that follows from my argument that all members of the human species have a basic right not to be killed while acting peacefully.) On that view, it would be okay to kill a fetus at 37 weeks but not one who had been delivered seconds ago. But the two beings don’t differ substantially enough to justify treating them as being radically unequal in their rights, with one accorded a right not to be killed and the other denied that right. We’re not talking about a right to separate the fetus’s body from the mother’s, after all. Particularly late in pregnancy, that could be accomplished without killing. We’re talking about a deliberate choice to kill the fetus.
Second, the emailer suggests that my belief about personhood logically compels me to support prosecuting mothers who seek abortions exactly the same way that existing laws would prosecute a mother who hired a hit man to kill her adolescent child. I don’t think that conclusion logically follows, for reasons I try to explain here. (The first and last paragraphs aren’t really relevant now.) Another way of putting the point that I tried to make is that the subjective moral elements of two acts can be different even when their objective elements are the same, and that both sets of elements are relevant to the construction of a just legal regime. Or, to put it still another way, the factors (including the moral factors) that we can rightly consider in determining how harshly to punish an offense, or whether to punish it at all, are not limited to the factors that we can rightly consider in determining whether to prohibit it. I think if you think about the way we sentence criminals, this isn’t really all that controversial a point.