Consider the following scenarios:
--A man kills his wife in a hunting “accident.” The police are convinced that it was deliberate but know that they will not be able to prove mens rea, so they don’t even consider prosecuting.
--A thirteen-year-old girl cold-bloodedly poisons her grandfather and two other people in her house for “being mean” to her. She keeps a diary bragging about how clever she is. She is prosecuted but will never face the death penalty, because her state does not have the death penalty for minors as young as she is.
--A young man forcibly rapes his girlfriend, who had willingly gone to his apartment for dinner but had no intention of having sex with him and gave him no indication that she was willing. In her mental turmoil afterwards, she foolishly waits to report the rape until two weeks later, when the bruising on her wrists and arms has disappeared, so the evidence is he-said, she-said, and no prosecution is possible because due process will protect her rapist.
--A mafia hit-man meticulously plans an assassination, but his gun jams at the last minute. Due to the circumstances, he doesn’t have time to fix it and drops that particular assassination attempt. The police get evidence of the attempt but can try him only for, at most, attempted murder, even though his guilt is identical to that of a successful hit-man. He was “saved” from actually committing the murder only by a morally lucky accident.
--A woman commits a heinous murder, but the police gather the evidence (for some reason) by way of a blatantly warrantless search, so it is inadmissible in court, and she goes free.
--A man urges his wife to kill someone against whom he has a grudge, believing that a jury will go easier on her because she is a woman. She eventually complies and is duly tried, convicted, and punished. He can be tried only for incitement or as an accessory and cannot be subject to the death penalty, though the whole idea was his.
--A young woman kills her five-year-old child and pretends that it was done by someone else. She is tried and acquitted and afterwards goes on a talk show bragging about how she committed the murder and got away with it. She can now never be convicted of that murder because a retrial would violate double jeopardy.
What do all of these cases have in common? They are all similar in that someone gets away with doing something evil that, it seems natural to think, the law ought to punish. Or someone gets a lesser legal penalty in a situation where, logically, it seems that his guilt is equal to that of someone who gets a greater penalty. In each case, however, there is a completely explicable legal reason for the lesser punishment or even the impossibility of prosecution altogether (as in the rape case). I would argue moreover that in each case the legal reason is a good legal reason and that abandoning the legal principle involved--allowing young minors to get the death penalty, prosecuting men for rape in cases where the evidence is scanty, abandoning the prohibition on double jeopardy--would be a bad idea. Yes, that means that some guilty escape, but our common law legal tradition has always held, rightly in my view, that the law should err, when it must err, on the side of false negatives rather than false positives. Also, the legal tradition of the west has been (again, rightly) that invasive legal or police procedures that are likely to harm the innocent should be eschewed, even if this allows some of the guilty to get away. That is why our Constitution emphasizes the rights of the accused. That is why mens rea is such an important legal principle. That is why the fourth amendment principle of no unreasonable search and seizure makes it impossible to use illegally obtained evidence, even if irrefutable evidence of a heinous crime, in court.
One might say that all of this means that the law is not perfectly logical, if we require for “perfectly logical” that the law should always track moral guilt and mete out to every man his just deserts, letting none get away without their just deserts, at least for publicly accessible crimes (like murder and rape) that would in the general legal run of things be legitimately punishable by law. That is, in fact, not how law works in many cases, and not even just because of prosecutorial discretion. Nor would it really make sense to say that “ideally” the law would always do so, if the only way for such alleged ideals to come about would be to abandon principles like no double jeopardy, the fourth amendment, the requirement to prove mens rea, the requirement for conviction beyond reasonable doubt, and so forth. These, in fact, are parts of an extremely carefully balanced legal set-up, and we shouldn’t even be aiming to abolish them incrementally.
Notice that all of this introduces an ambiguity on a word like “should” as in the following statements: “Morally cognizant thirteen-year-olds who cold-bloodedly commit murder should be punished equally with adults.” “All men who commit rape should be punished.”
In one sense, one could say that such statements are true. They may even seem uncontroversially true. That is, in the sense of “just deserts.” The thirteen-year-old poisoner deserves to die. The rapist who didn’t get reported in time deserves to be punished. But in another sense it is quite arguable that such statements are false. That is, in the sense that “should” refers to how we are obligated to attempt to structure the legal system. We are not obligated to attempt to structure our legal system so that all cold-blooded, thirteen-year-old murderers are punished equally with adults or so that we insure that all rapists are punished without exception. There can be countervailing considerations (such as the danger of punishing the innocent or those who are not fully morally responsible for their acts) that would make it imprudent and hence actually wrong deliberately to structure a legal system with that goal.
All of this brings me to the question of punishing women who procure abortion. This question has arisen recently apropos of the candidacy of a completely insincere and disgusting candidate who means nothing and whose words should not be allowed to cause reasonable people to go running to their computers to have a big debate, as though he really had made some meaningful and sincere pronouncement.
However, I suppose the question is interesting enough in itself, and some of those who just love to accuse pro-lifers of being inconsistent (on the left and on the right) have taken it as their opportunity to make extreme claims.
In general, what these claims (“You’re an inconsistent pro-lifer if you don’t aim to have women punished for procuring abortions”) have in common is a failure to recognize this: Even in a situation where abortion was treated, as far as the abortionist is concerned, as first-degree murder (with the death penalty in relevant states), all of the general messiness of law in the real world would apply to the situation and in particular to the woman involved. Nobody except foolish feminists thinks that the requirement in law for evidence beyond reasonable doubt in cases of rape means that “we don’t really think women are human beings.” Nobody except a fool thinks that we don’t think human beings are human beings because we apply the principle of double jeopardy to a bragging murderer who has been acquitted. Nobody thinks that the victims of the plotting thirteen-year-old “must not really be believed to be human” if the law fails to punish the thirteen-year-old as harshly as an adult. And so on through a million places where law makes distinctions, yes, even distinctions that tend to favor describable groups of people, such as those who incite someone else to murder rather than committing it, those of a younger age, those whose crimes are committed in cases where intent or state of knowledge is difficult to prove, etc. In none of these cases is the humanity of the victim being impugned. Rather, the general idea is that the common good is not served by always trying to give every wrongdoer his just deserts. Again, this is not only a matter of prosecutorial discretion. Sometimes these matters are set up in statutory law ahead of time.
A legal situation with harsh penalties for abortionists and zero penalties for the procuring woman would be just another such rough-cut distinction made by law, based on considerations like the difficulty of proving the woman’s state of knowledge or intent, information about the prevalence of mitigating pressure and even coercion on the woman, the widespread deception practiced upon pregnant women, the fact that the woman is not confronted with the humanity of the victim in the same way that the abortionist is, and so forth. (Abortion is unique in that the victim is physically hidden, and can remain hidden, from one of the people who is complicit in the victim’s destruction.) All of these could well make it both impractical and imprudent for the law to get involved in trying to exact legal penalties upon the woman. Moreover, the pro-life goal that every child should be recognized as a human victim and protected in law would be accomplished by harsh penalties for the abortionist as a murderer, who sees the humanity of the child in the very act of killing. And, just as the reality and humanity of the victims is not denied in any of the above scenarios where someone who is morally guilty doesn’t get his just deserts, so it would be here. Such a legal set-up does not deny the humanity of the unborn child but is based on the intrinsically messy nature of the real world in which law operates and on the difficulty of the necessary task of proving mens rea.
Perhaps the tweaked and slightly more “perfect” legal situation would be one in which the woman could in theory be charged as an accessory before the fact but in which the law expressly provided for what is known as an “affirmative defense” which would block the prosecution. Such affirmative defenses could include lack of knowledge, having been lied to about the nature of the unborn child within her, or outside pressure from other people urging her to have the abortion. Often when a law expressly allows a fairly broad affirmative defense, prosecutors don’t even bother to prosecute that person at all. It would also be possible to offer complete immunity from prosecution in return for testimony against the abortionist. However, in some utterly blatant cases of heartlessness and knowledge on the part of the woman, where this can be proven, prosecution as an accessory would still be possible in theory. Certainly nothing I have said here means that it would be per se unjust for the law ever to punish any woman to any extent for procuring an abortion. Indeed, legal punishment might be well-deserved in some cases.
But even this latter scenario is not one that I think pro-lifers should pursue, for prudential reasons. I do not consider that it is necessary to our cause, and I think that treating it as a goal of our cause merely creates additional and unnecessary odium. Our goal should be the prosecution of the abortionist with, in that prosecution, the full recognition of the humanity of the unborn child. That is a far-away enough goal that we shouldn’t have much energy left over for grousing about how allegedly stupid and inconsistent our fellow pro-lifers are for not loudly pursuing the prosecution of the mother. Again, statements like, “The woman should be punished” or “The woman shouldn’t be punished” are ambiguous concerning what sort of “should” is in view--whether referring to what a person might deserve or to what policies ought to be pursued.
I don’t use the catch phrase that the “woman is always the second victim in an abortion,” because I think it is too sweeping and sometimes untrue, perhaps even more often untrue than one would like, in charity, to believe. I don’t like catch phrases anyway and avoid them whenever possible.
Sometimes, however, it is true that the woman is to some extent or other a second victim, and the new misogyny that has become prevalent in some unpleasant corners of the “right” is ideally placed to blind people to just how widespread such situations are--situations of coercion, pressure, lying, etc.
There are indeed heartless women who have abortions; there are also deceived and pressured women who have abortions. It’s not a failure to “really believe” in the humanity of the unborn child or even in the general moral agency of women to sketch out, as a legal goal, going after the abortionist instead. And contrary to the impression you might get, what I’ve said here is not unique. It is not the case that all pro-lifers are out there saying that it would be wrong per se under any circumstances for a woman to be punished at all in law. Scott Klusendorf, for instance (about as mainstream pro-life as it gets) emphasizes the prudential issues and the issue of mens rea in a public Facebook post.
Doug Wilson emphasizes similar issues.
However disappointing this conclusion might be to those who want to find and crow over “wimpy, feminist conservatives letting women off the hook” around every corner, the approach to policy that I am recommending in this post is the type of thing that is common and legitimate in the western legal tradition and in political action and is entirely compatible with full recognition of the humanity of the unborn child.