Magazine | May 9, 2016, Issue

Abortion and Punishment

Why women should not be penalized for the killing of their unborn children.

Should the government punish women who procure abortions? Most pro-lifers say no, but all parties to the debate over abortion have considered the question an uncomfortable one. It appears to put them in an unwinnable position. If they say yes, they hand supporters of the abortion license another reason to call them extreme, or at least to say that their view should be rejected because of its unacceptable implications. If they say no, they can be accused of lacking coherent convictions, or of lacking the courage of those convictions.

The topic came up in Roe v. Wade itself. In his opinion striking down nearly all state laws against abortion, Justice Harry Blackmun noted that “many states” did not provide for the prosecution of women for cooperating in abortions performed on them. Parties in favor of allowing abortion, he pointed out, inferred from this fact that the laws had never been concerned with the protection of fetal life. The implicit argument, which Blackmun repeated without challenging, was that exempting the women from prosecution is incompatible with viewing the human fetus as a bearer of a right to life: a person.

Donald Trump recently stumbled over this topic. Asked whether women should be punished for seeking abortions once they are prohibited, he said yes — perhaps under the impression that this answer logically follows from prohibition, or under the impression that pro-lifers would find this answer appealing. But pro-lifers were generally appalled by the answer, and Trump quickly retreated from it.

Most pro-lifers say they have no desire to punish women who seek abortions. All the major pro-life organizations share this view. The Republican platform, after declaring that unborn children have a right to life, affirms “our moral obligation to assist, rather than penalize, women challenged by an unplanned pregnancy.” Anti-abortion laws traditionally have shown no interest in punishing the women. On this point, at least, Blackmun was correct; indeed, he understated the truth. Most states had explicit exemptions for the women, and the rest had exemptions in practice. Clarke Forsythe has pointed out that there was no documented prosecution of a pregnant woman under an abortion law anywhere in the United States between 1922 and 1973, the year Roe was decided.

Some pro-lifers, however, believe that, to be consistent, they should seek legal penalties for abortionists’ clients; and others resist that reasoning but are not sure why it’s incorrect.

That resistance is justified. The historical practice was right, and the mainstream pro-life position is right, to seek to protect unborn children from abortion (and abortionists) but not to punish their mothers for seeking it. A coherent and sound set of views, not just squeamishness and political cowardice, supports that position.

The core pro-life conviction is of course that unborn children have a right to life: a right, that is, not to be deliberately killed, and a right to be protected by the government from being deliberately killed. All human beings have this right, the most basic right any creature can have. The right attaches to human beings in the embryonic and fetal stages of development, just as it does at later developmental stages, because human embryos and fetuses — no less than human infants, toddlers, adolescents, and adults — are living, individual members of the human species. They are not dead, or inanimate, or members of a different species, or functional parts of larger organisms (in the way that sperm and egg cells, or liver and skin cells, are functional parts of larger organisms). Embryos and fetuses differ in certain important respects from other human beings. But these differences — notably, but not exclusively, differences in their stage of development, size, location, and condition of dependency — cannot justify denying them this fundamental right.

Lawmakers are thus justified and indeed duty-bound to treat abortion as an injustice, to communicate the truth about its injustice in law, to prohibit it, and to take steps to make sure that the prohibition is not violated. (Citizens who are not lawmakers are justified and duty-bound to work to persuade lawmakers to do these things, and to work to elect lawmakers who will do them.)

The precise dimensions of a legal regime that meets these goals cannot simply be deduced from the goals. There is room for legislative judgment, which means that different legislators could reasonably reach different conclusions even while sharing the basic premise that unborn human beings have a right to life that the government should respect and protect. The legal regime necessary to achieve these goals would also probably vary in certain respects from place to place and era to era.

Notwithstanding those important caveats, a legal regime designed to give teeth to a prohibition of abortion would almost certainly, in any time and place, have to involve penalties for abortionists. Deterring abortion might require, for example, stripping doctors who commit abortions of their medical licenses and levying steep fines and even jail terms on anyone who commits abortions without medical licenses.

Does justice require penalties beyond those necessary to protect unborn children from the injustice of abortion? Those who say that the pro-life position logically entails punishment for the pregnant women involved in it are implicitly answering that question affirmatively. Both the abortionists and their customers are committing a grave wrong against another human being, and in most such cases government exacts a measure of retribution.

When deciding how harshly to punish a crime, however, the law rightly takes account of more than the gravity of the injustice worked by the crime. It also takes account of the rippling consequences of the crime and the blameworthiness of those involved in it. Did the act show depravity, callousness, malice? Were there aggravating or mitigating circumstances? Did it undermine the community’s sense of safety? If punished lightly or not at all, would it be likely to lead to widespread vigilantism?

Sometimes these determinations are made retrospectively by judges and juries, sometimes prospectively by lawmakers. A man kills his wife’s lover, and a businessman kills a rival. Both victims, equally, had their right to life violated, but the law treats the killings differently. In doing so, it does not treat one victim as more important, as having more worth and rights, than the other. If a government punishes the killing of a police officer more severely than the killing of an ordinary citizen, it is not acting on the view that police officers have a greater right to life than everyone else: It is making a reasonable (though, of course, debatable) judgment about the conditions and requirements of public order. (It might make a similar judgment about punishing the killing of witnesses to a crime, even when those witnesses are not people of upstanding character: The judgment does not turn on the moral worth of the victim.)

Now apply these considerations to the punishment of abortion. Abortion is wrong and unjust, but neither the women who procure abortions nor the abortionists are typically acting out of malice. The women are frequently in difficult, and sometimes in desperate, circumstances. They do not have the same emotional bonds with their unborn children that mothers of infants and toddlers typically do. The abortionists typically believe they are providing a kind of humanitarian service — grotesquely, in light of moral reality, but nonetheless sincerely. For these reasons, some pro-lifers avoid (and all pro-lifers should avoid) using the word “murder,” with its connotation of malice, to describe abortion.

What may be most important is that in our society, both the mothers and the abortionists have had their understandings of abortion shaped by a culture that does not communicate the truth about abortion and unborn children — a culture that includes laws that do not treat abortion as a crime or wrong at all, and that deny the very humanity of unborn children. In this way, our law and culture lead people into serious moral error. A reformed law and culture need to take account both of the seriousness of that error and of the way that our culture has diminished people’s culpability for it.

None of the differences between the killing of unborn children in abortion and the killing of older human beings outside the womb furnishes a good reason for failing to prohibit the former. The fact that many people of good will in our culture view abortion as morally permissible does nothing to extinguish the unborn child’s moral claim to be protected: Decent people have in other times and places seen nothing wrong in denying basic human rights in ways we now wish governments had been able to prevent. (Slavery is the obvious illustration of this point in our country’s history.) Unjust killing is unjust killing, regardless of the motives and the social context.

But the motives and the context can and do justify a certain leniency of treatment. Again, though, it’s important to note that in different times and places, different judgments might apply. In a society in which the vast majority of citizens appreciated the moral truth about abortion — the society that pro-lifers should strive to bring about — it would probably be the case that abortionists were more likely to be depraved, and tougher punishments for abortionists might then be warranted.

But our society had a better understanding of abortion 100 years ago, and even then sympathy for pregnant women in distress was a weighty consideration that led to the waiving of penalties. That consideration was supplemented by a practical one: The women’s testimony against abortionists was necessary for the law to fulfill its primary aim of protecting the unborn.

Historically our anti-abortion laws did what the pro-life movement wants laws to do today: They recognized that unborn children are living human beings with the same right not to be killed that the rest of us possess; they gave effect to this recognition by prohibiting abortion; and they imposed no legal penalty on the mothers. The laws were right on all these points, and most pro-lifers are right on all of them today.

That movement — the great human-rights movement of our time — has rightly sought to save babies, not punish women. And it has rightly understood that we can save unborn babies without threatening to punish their mothers.

– Mr. George is the McCormick Professor of Jurisprudence at Princeton University. Mr. Ponnuru, a senior editor of National Review, is the author of The Party of Death.

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