Saturday, April 09, 2016

Abortion and punishing women

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.


N said...

Hello, Lydia, I hope you are well! I have some worries about the above and a couple of questions.

What do you think about cases in which the woman obtained (or even made) an abortifacient pill which she took herself? Or in which she administered a surgical abortion on herself?

As I understand it, in the U.S. someone who contracts a killer to kill their spouse can be punished legally, often quite severely (though I don't know if there is an affirmative defence issue in such cases). It seems that most of the considerations you bring in to support a situation with zero penalties for a procuring woman are of a type which would obtain in cases of contracting a killer, yet punishment for the contractor is still 'on the books'. The exceptions would be that the woman is not confronted with the humanity of the victim in the same way as the abortionist is, and the deception practised on pregnant women. But these do not seem to be enough to argue zero penalty for the woman. The former at best would argue for a penalty but just a lesser one, moreover, there are cases in which the humanity of an individual is less evident for a killer (such as if the victim is significantly deformed or disfigured or highly autistic or mentally disabled) but which we would want to say would not argue a lessening of the penalty (I don't know whether a distinction is marked in U.S. law in such cases).

As for the deception practised on pregnant women, it does not seem to me that if there were an organised campaign of disinformation to claim that individuals of a certain race x were subhuman, and so it was less wrong to kill them, that this would excuse someone even partly for killing a member of that race, supposing that they bought into that disinformation. Moreover, presumably there would be enough government information in sexual health clinics and so forth such that, within a very short time, claims of being deceived cannot be relied upon (also, the woman would surely know that this was against the law, and it is not typically an excuse for breaking a law that one thinks that the law is an unjust or incorrect one). It's always the case that one could claim one was deceived about some fact or other, either by a malicious party or simply by misunderstanding or misreading some correct information. But surely such claims should carry little weight when constructing laws and assigning punishments?

I hope you will forgive any inaccuracies in the above and correct me where I am wrong - I know little of the U.S. legal system.

Lydia McGrew said...

I disagree about the analogy with a person who is taught that someone of a particular race is subhuman and so forth. I realize that they are tempting analogies to make, and certainly *in logic* it is *quite* legitimate for us pro-lifers to strenuously make the argument that the born/unborn distinction is arbitrary and even make analogies to race and so forth.

However, *in law* I think the analogy fails as a simple result of the invisibility of the unborn child to the woman. (And remember that abortionists are often careful to prevent a woman from seeing an ultrasound of her child, turn the screen away, or show her a fuzzy image at most and misinterpret it.) The humanity of persons of another race and even disabled persons _confronts_ us, including any parent (such as a mother) who wanted to have such a born child killed, in virtue of the fact that the person is _visible_ to her and cannot be ignored.

Perhaps the nearest analogy (which I know is not quite the analogy you were reaching for) would be some sort of situation where a disabled child is born and quickly whisked away and then the mother is not allowed to see the baby, is given no accurate information about the baby, and instead is told, "You gave birth to a monster. Do you consent to our putting the monster out of his misery?" In that case I think the same mitigation would hold, and if that were being done systematically somehow, I can see applying a similar legal standard and just going after the medical murderers.

Remember that a phrase like "arguing zero penalty" doesn't mean arguing that zero penalty *is all the mother deserves*. It might well be that there is a real penalty that a great many women procuring abortion _deserve_ in a moral sense but that a good argument can still be made for not _pursuing_ any penalty in law.

N said...

Wow, what a quick response. Thank you!

I wonder if abortionists would, given the illegality of abortion in our supposed example, have the same recourse to an invisibility defence. Suppose abortion is made illegal and a pro-abortion feminist, who has never been involved with the practicalities of abortion, sets himself up as an abortionist. His crude method is to try to jab the unborn child with a sharp instrument when it is in the uterus, in the hope of killing it. Would this man also have the invisibility defence if he successfully completed an abortion?

One issue is that I think that the second analogy you give, although closer, runs together the two mitigating factors a bit: the invisibility factor and the misinformation factor. Presumably in our new illegal abortion state, the misinformation campaign and its historical effects will be being countered by an government anti-misinformation campaign, plus the knowledge that this is all illegal.

Suppose we add to your example that the woman knew her baby was to be disabled, but also knew that killing such a baby was illegal, and that there was lots of government information around to that effect that explained the good reasons for it being illegal, and to the effect that using the word 'monster' of such a baby was wrong, etc. She nevertheless goes to a secret hospital (which she knows has to be secret and non-governmental because what she is doing is illegal) to give birth, knowing that she will be committing an illegal act, and knowing that there is a lot of information out there as to exactly why this act is illegal. In that case, I'm not sure I would want the mitigation to hold, and I think that a law that does allow that to hold would be wrong - I don't know whether a mitigation would in fact hold, though . . . What do you think?

Lydia McGrew said...

I don't see how he could be thinking of jabbing the unborn child with a sharp implement without having some idea of where he was jabbing and how that was supposed to accomplish the abortion. The very fact that he is engaging in the direct, crude physical attack on the physical integrity and life of the unborn child presupposes some degree of knowledge of the physical facts of the matter.

I suppose one could make up some much weirder scenario where a mother goes secretly to a "wise woman" and obtains an abortion potion and gives it to her daughter to drink, both of them being ignorant of biological facts. Then the baby comes out dead and they're both horrified at what they have done. There, the *first* time (and only the first time), you might have an ignorance/invisibility defense for the mother as well as the daughter. In that case the potion could legally be treated as an illegal drug, and the mother could be culpable for purchasing it (and the "wise woman" for selling it) as it would be for cocaine, etc. In that way the knowledge of the biology of the unborn child would not have to come into the matter at all, at least not in the first instance.

Concerning the "monster baby" scenario, with the lies, I think whether not to legally prosecute the mother would need to depend on prudential factors, not only on her objective guilt. Even if she is not, in fact, significantly mitigated, there *could* be legal scenarios in which it would be better to have a law punishing only the medical murderers at the secret hospital and not her. For example, do women in such situations _generally_ know what such a child actually looks like, that the "monster" designation is a lie, etc.? And how difficult would it be usually to prove in court the mother's mens rea in consenting to the death? Etc.

Lydia McGrew said...

I shd. also add that laws again are intended for the world as it actually is, and in the real world, there are no "abortionists" who literally know nothing and are blindly stabbing at they-know-not-what. Abortionists *actually are* knowledgeable people who are doing something they fully understand, directly attacking children and killing them.

N said...

Yes, you're right that an invisibility defence would only work the first time - good point. By the way, was one of your cases in the OP based on an Agatha Christie novel? It seems strangely familiar! :)

I wonder if any useful analogy can be made with fetal homicide? I understand that in some states this is treated as murder and that it is applied throughout the period of development in the womb. If a man punched his girlfriend in the stomach with the intent to kill the fetus and succeeded, it would seem that he would also be covered by the invisibility defence, and plausibly also by the ignorance defence (at least in many cases) due to our current culture. Yet he is still punished (again in some states only) over and above the damage he does to his girlfriend. Obviously there is some disanalogy here, as he is acting as the abortionist rather than as the mother who commits the abortion. But wouldn't the point remain that invisibility and ignorance do not lessen the punishment by being mitigating circumstances in such cases? Then I suppose we might construct a case in which a man hires a contract killer to punch his girlfriend in the stomach which would be more directly analogous. In such a case the man might well be punished less severely than the contract killer, but it seems that he should get some sort of punishment (at least to me).

Off-topic but congrats on the undersigned coincidences book deal! Do you have a timeline for it? (I was watching the video you posted.)

Lydia McGrew said...

Yes, one of the scenarios is based on a Christie mystery but don't say which one. That way the spoiler effect is minimized. :-)

On fetal homicide: One important point is that having _no_ extra penalty for the intent to harm the unborn child does _not_ serve the goal of attempting to protect the unborn child in law and recognizing his humanity. This is an important disanalogy with a legal set-up that goes after the abortionist and not the woman, as that legal set-up does have an important component that _does_ protect the unborn child as such.

Second, I have not studied fetal homicide laws in depth, but my guess (I'm willing to be corrected) is that the second homicide charge for the fetus is some second-degree thing that isn't identical to the premeditated murder of a born person. If so, presumably that *just is* the encoding of some kind of invisibility defense into the law. This doesn't seem to me something that _inherently_ would have to be changed, if so.

Third, there is this messy idea in law that nonetheless seems to me to have legitimacy that if you _definitely intend_ to do one kind of harm while _knowing_ that you are very likely to do another kind of harm, then you are punished extra for the _combination_ which is more than either thing by itself. So if you intend to beat somebody up and he actually dies, for example, even if you say you only intended to beat him up, the fact that you _did_ intend to be a "bad guy" to the extent of beating him up means that you are liable (probably in criminal but definitely in civil) penalties for the fact that he died. You can probably think of other ideas. It's a sort of notion that you can't just say, "Hey, I wanted to do something really bad, but I didn't quite intend it to go that far" and have anybody take this seriously or not punish you according to how far it actually went.

Since in this case the boyfriend _is definitely_ and without the slightest ambiguity a vicious aggressor against his _visible_ girlfriend, and since his *definite intent* was to cause her the harm of a miscarriage (which, by that method, could kill her), it certainly does no legal harm and requires no special "untangling" of motives, knowledge, etc., to charge him as well in some way for the harm done to the unborn child.

Whereas in the case of the woman who consents to abortion, such untangling would to some degree be necessary in law, _especially_ if there were any attempt to charge her identically with an accessory to Murder 1. This could be something that the law decided not to try to do since the same end could be accomplished by punishing the abortionist.

Lydia McGrew said...

(Inserting a comment for Tony, who was getting hit by blogger's character limit.)

It is difficult for us, in this day after 45 years of intense disinformation from the pro-abortion side about "blob of tissue" and "woman's right to choose", to realize how thoroughly that disinformation has warped people's understanding and judgment about abortion, both about "what it is" as well as about "what it means morally". 60 years ago, people were much more clear about it being bad, morally objectionable. At the same time, the state of biology was less clear that it consisted of killing a real human being whose ultimate development is fully specified ALREADY, by its nature and by its genetic code. And in spite of not realizing as clearly the facts of embryology, most people were well in tune with their basic intuition that killing the fetus meant interfering with the life process, even if too early to clearly say an abortion was "killing a human being" simply, without qualification.

I think it is not accidental that abortion laws in the 1800's and 1900's were a patchwork quilt of variation. Mostly abortion was illegal, but that does not mean it was prosecuted as (for example) first degree murder.

While I sympathize, Lydia, with the perspective that because the child is hidden the perception of women as to the nature of the act would be (often) attenuated and thus justify lesser punishment, I think that this fails to fully recognize the full effect of social and legal opprobrium. During the early years of this country, society was firmly and solidly against abortion, (though there were few LAWS on the subject), and that social attitude was quite enough to impress itself on people that the act was, at the least, grave.

Also, as is hinted at above, "the law is a teacher". If we had laws in place that treated abortion as first degree murder, not initially but over time that fact alone would impress itself on citizens as having an import with respect to the nature of what you are about when you seek one. Sure, the child is just as hidden, so VISION is obscured, but you also have the law yelling in your ear "it's a child". True enough that humans as a whole are more attuned to what they see than what they hear (sight is the more refined sense), but hey, we can also point out the common wisdom that "men are driven by their eyes more than women", that's why men are more driven to seek out exterior beauty and often positively ignore interior beauty.

I believe that over some decades, with (a) clear and single-voiced social pressure, (b) a well-crafted set of laws that surrounded abortion with penalties and surrounded the fetus with protections, and (c) proper teaching in schools and churches and families, there would be very little space for women to claim IGNORANCE of the nature of the act of abortion on account of the obscurity of the child.

Still and all, there would remain OTHER reasons for treating the woman differently from the doctor. Ignorance is only one cause of reduced responsibility, there are others. And on the other side of the coin, a doctor would have a specialists's knowledge of life, he would have an aggravated culpability, for he would know all the more the fine-tuned realities of the nature of the act - the pain of the child, the interiorly-driven process of change that means the child is already the human being it will be visibly, etc. There would remain pressure, sometimes grave, on the woman pregnant out of marriage (or, worse, pregnant but not by her husband.) Hence, if there were overnight a reversal of Roe, and state laws outlawing abortion, there would be at first plenty of reason to restrain punishment of the women at all, and over time still reason to have different treatment of the women and of the doctor.

Lydia McGrew said...
This comment has been removed by the author.
Lydia McGrew said...

(Continuing Tony's comment.)

That said, one of the obvious need for just laws would be for the law to SPEAK to undue pressure on a woman. For example, of a boy gets his girlfriend pregnant, and then refuses to help pay for the child or take any responsibility for the situation, the boy's actions deserve the disapproval of the law, perhaps as constituting pressure to abort, which could then be treated as (at the least) incitement to a crime, or inducement to corruption or something of that nature. But more probably it would have to be singled out as its own category of crime. (This is part of what I meant about laws surrounding the issue to protect the unborn.) There would be similar reasons to make a father or mother pressuring a daughter to abort as guilty of a separately specified crime.

But to that extent that society and the laws fully flesh out an entire regime that correctly identifies the evil of abortion (and attendant acts), and correctly allocates responsibility and correctly judges it when possible, just to that extent women will have less and less defense of being unaware of the true nature of the act. It seems to me unlikely that when an equilibrium point is reached with laws doing all the teaching that laws can do, that laws would rightly leave women unpunished at all for procuring abortion, but also unlikely that they should be targeted with capital charges even when the doctor should be.

Lydia McGrew said...

Tony, thanks for your excellent comments. I don't think we are that far apart.

I would distinguish, when talking about a "goal," between a legal goal and a societal goal. I notice that you yourself express what you would expect in terms of societal change in terms of _likelihood_. That is, you think it _likely_ that, if we started out by punishing only the abortionist but punishing him unambiguously for murder, gradually this itself would change society to a point where it would make sense to charge the woman for murder as well, though not necessarily even then punished in law as severely as the abortionist.

In this way societal goals and legal goals are intertwined. One legal goal accomplished (punishing the abortionist) changes society, and if society is significantly changed, then another legal change makes better sense within that new societal context (punishing the woman).

I am not clear myself as to how that dynamic would _actually_ go. I can imagine a long "hang time" during which propaganda and confusion would continue to reign and would continue to make showing mens rea for the woman an unnecessary burden on the law and something that would have the potential to snag deceived and abused women. At some point in the whole situation a place might arise for my last suggestion of allowing an "affirmative defense" specifically for the woman.

Generally when I talk about a goal in law, I mean a goal in law that _should_ be imposed *even if* a large number of people in society are still messed up about the matter. I would say this about laws against abortion per se, that is, laws that punish abortionists. That's why I never talk about how "we have to change hearts and minds first," blah, blah. Practically speaking there is truth to that just in the sense of what has to be done to bring about legislative change, but the laws _just should_ protect the child, and if there are people out there who don't get it, too bad! But when I say that the punishment of the woman shouldn't be a legal goal, I mean in that direct sense--that we need this and should aim for this, let the chips fall where they may.

More indirectly I can see saying that a society *in which* everybody knows so well what is going on that there is no burden and no ambiguity in showing mens rea on the part of the woman who seeks abortion would be a good outcome.

N said...

Thanks for your patient replies, Lydia; very thought-provoking!

Jeffrey S. said...

Great post Lydia!

I wonder if there is another factor working against harsh punishment for women who get abortions, especially young women -- the pro-life movement really wants people to learn to cherish and value human life, especially the growing unborn life in a woman's womb. I could certainly imagine that a woman who gets an abortion and later regrets her decision thanks to what she learns about fetal development and/or life in her womb and then goes on to actually give birth to children; that this woman would be considered a victory of sorts for the pro-life movement. Now, I suppose that there are plenty of women who do this anyway today: they have an abortion (or multiple abortions) and then when they are finally ready they actually give birth. But I also imagine that there are women who just aren't interested in being mothers or think that they can't handle motherhood or as you have already discussed, are pressured by the men in their lives to get an abortion -- if abortion was illegal and if we aren't punishing the mothers than it seems like this is an additional signal we are sending all of these women that we value their babies and want them to be mothers.

I'm not sure this plays a factor in many cases but there might be some edge cases that are helped by the lack of at least harsh punishments for the woman.

Lydia McGrew said...

It's an interesting balancing act, because the woman definitely does need to repent. In that sense, I sometimes cringe just a bit at the extremely positive and almost sentimental portrayal of women who have had abortions and now are having children as well as at the term "non-judgemental." That is to say, to the extent that there was real sin (and in a large number of cases there definitely was), there needs to be real repentance. How can we avoid just telling them, "It wasn't your fault, it was everybody else's fault, you didn't do *anything* wrong" while at the same time showing compassion and an acknowledgement of the real guilt of other people who pressured her, etc.? Ultimately, I think law has _a_ role to play here even if only in the realm of punishing the abortionist. After all, if the woman herself knows that the person who is doing this "procedure" is doing something that society has designated to be murder in law, that's likely to have some effect upon her own perception of what she is doing! It's pretty far removed from "helping her to obtain her constitutional rights."

Like you, I don't think that the mere fact of not having a legal penalty for the woman in and of itself means that she has not done something gravely wrong. At the same time we probably could use a bit of a shift in our pro-life rhetoric so that we are not _so_ non-judgemental as to give precisely that impression.

It's a difficult balancing act.

Greg said...

The reason women who get abortions should be punished is that they are rational moral agents capable of knowing right from wrong. Eve was punished alongside Adam for her disobedience; in doing so God gave the first model for punishment. There is nothing unique about abortion that excuses women from facing the consequences of their actions. In fact, abortion is possibly something that should be more strongly prosecuted than other crimes because of how unnatural and wicked it is for a mother to seek out and act on.

There cannot be any serious discussion about applied ethics until one considers the purpose of law from a biblical perspective. When God gave the Law to Moses, it was to accomplish three things. One, it was to provide retribution to those who violated it. Two, it was to provide restoration to those who were violated. Three, and this seems to be the essential part, the Law was a message from God to Israel instructing them as to their status. By its prohibitions and requirements, it signaled to people where they stood and how they were to think about themselves, their sins, and their redemption. Thus the Israelites were to obey God and worship Him solely because of His unique status as Lord and Creator. Children were to honor their father and mother as God ordained families to work in this hierarchical way. The priests had certain responsibilities and privileges which placed them as mediators between a holy God and sinful man. Animal sacrifices were performed so that people could literally see the consequences of their sins.

But how does this apply to us who don't live under the Mosaic Law but must come up with legal prohibitions in our own societies? Importantly, we should first consider what message a particular law sends. Women, and especially mothers, are created to be loving, unselfish, nurturing, caring, and life-delivering. Abortion is a grievous act against these natural ends. Women who are not punished for abortions will not appreciate the disruption and brokenness they caused by their decision. Many will no doubt be confused by the combination of guilt and shame that is unaccompanied by any justice against them. In such a society people will see a contradictory message toward what women are to be judged for--a woman who cheats the tax system is prosecuted while one who commits filicide is seen as a victim of outside influence. Such a message is not one that any traditionalist Christian should want to send.

Lydia McGrew said...

I wrote an entire post that contains response to a lot of that. I'm not going to retype it. There is, in fact, a question as to whether every woman who signs a consent form at an abortionist's office actually "commits filicide." In general, certainly women are moral agents. So are a lot of people who aren't actually punished as they deserve, and that because of the cumbersomeness in a particular social setting of proving mens rea. See several of my examples in the main post. In this case there are also other available means for recognizing the humanity of the unborn child and protecting it in law.

You have a simplistic view of the legal setting and situation. By the way, from the changes you made here, Greg (whoever you are), I am guessing that you may have figured out why your earlier comment was not published.

One of the nice things about having full moderation turned on is that one can simply ignore certain comments and never publish them. I find it tremendously useful. He that hath ears to hear, let him hear.

Greg said...

"I wrote an entire post that contains response to a lot of that."

Well, actually you didn't. You gave no indication toward the law serving anything more than a utilitarian function and seemed only concerned with carefully balancing out (some) justice with due process. Your basic conclusion is that it is okay if women who kill their unborn children avoid punishment because we can still limit abortions by punishing abortionists. But such a position is clearly unbiblical.

You attempted to weasel out of a pro-punishment position by constructing an elaborate counterfactual world where concerns for the rights of innocents and privacy rights are so strong, that due to the uniqueness of the practice of abortion, such concerns should override any reasons for prosecuting women. Such a counterfactual is irrelevant to the pro-punishment argument for two reasons.

One, the counterfactual exists only in your own mind. It isn't the case that all women seeking abortions do so because they are deceived, threatened, or unaware of the wrongness of the act. It isn't the case that honest and godly prosecutors couldn't prove mens rea in abortion cases. Abortion is not unique enough of a crime that you can say otherwise. Other hidden acts involving bodily choices in private settings, such as homosexual sodomy, would be even tougher to prosecute in societies with strong legal protections for personal privacy; yet traditional Christian societies have historically been able to punish these sins while still maintaining broad freedoms.

Two, your counterfactual comes from humanist presuppositions and thus does nothing to rebut the pro-punishment argument that comes from traditional biblical presuppositions. In other words, if it were the case that women who got abortions couldn't be prosecuted due to the reasons you cite, then it'd be time to reconsider if these protections were even necessary to the legal system. (A cop forgetting to read an arrestee his Miranda rights should not allow a murderer to walk free, and it wasn't that way before an activist court ruled as it did). That's how fundamentally off you are here. The necessity of punishing a sin as serious as abortion is so deeply rooted in a biblical worldview that lame appeals to mens rea literally do nothing.

Getting back to my initial contention, and that is it's important that we ask ourselves what message our laws give to society. If abortion is the violation of God's design for life (and femininity, motherhood, innocence, goodness, etc.) that we believe it to be, then it is a serious sin for a mother to commit and should be addressed as such.

Lydia McGrew said...
This comment has been removed by the author.
Lydia McGrew said...

I did not say that "all women seeking abortions do so because they are deceived, threatened, or unaware of the wrongness of the act." I _expressly_ said the contrary. Twice in the post by my most recent count. Your reading comprehension needs to be brought up to speed. Also, I have really very little reason to publish comments by someone who doesn't pay more attention to what I wrote the first time.

Actually, the act of homosexual sodomy by itself was pretty darned hard to prosecute for the very reason of the difficulty of getting evidence in a society with strong limitations on government intrusion. That's why the last attempted prosecution occurred because, literally, a cop was in a house (with a warrant IIRC) for some other reason and saw two men having sexual relations through an open door. That doesn't happen very often, to put it mildly.

The word "utilitarian" can be thrown around to cast odium on any prudential argument. Newsflash: It doesn't denote a utilitarian theory of ethics to use prudential arguments concerning legal strategy. It is not _intrinsically wrong_ for a legislator _not_ to push for a law that punishes women who have abortions. Like it or not, the law always does and always must concern itself with the actual effects and the actual circumstances in a given society. Indeed, the Old Testament law (since you appear to be arguing for some kind of theonomy) certainly did so, and on numerous occasions biblical scholars have defended odd-looking OT laws on the grounds that they were addressing or were adjusted to some background circumstance in the society and the probable effect of having such a law.

Also, like it or not, not every serious sin is or will be addressed in law. My own post gave several such examples. It is a serious sin for a man to rape a woman, but there are going to be lots of cases where the evidence is insufficiently strong to prosecute because, for example, the victim waited too long to report. In that case, the rightful procedural protections that *should* be in place mean that a rapist will go unpunished. If we are going to say, "If that means that such-and-such will go unpunished, it is time to reconsider if those legal protections are necessary in the system," well, yeah, that's pretty much exactly what the feminists are saying about rape. They are trying to get the legal presumption of innocence, the ban on hearsay, and several other important legal protections removed just for that crime. Bad idea.

Finally, I hope you never live in a society where people call the appeal to mens rea lame and imply that it comes from a humanist perspective and that the need to prove it should be thrown out because it gets in the way of applying God's law to mankind. You are unlikely to like it if you ever are. The secularists are working hard enough at that (some environmental and other laws come to mind where mens rea doesn't have to be shown), and it's not a pretty sight.

That's the most patient answer I feel like giving to you, given your snotty tone. I suggest you alter it, if you want to keep talking and get published, or take a hike.

Unknown said...

Lydia, I think if Greg had said that "historically Christian societies have been able to discourage homosexual behavior *through the threat of penalizing it*", he would have been more accurate, and the spirit of his assessment would still have been preserved. Certainly when it was illegal it was kept behind closed doors. Exactly where it should be.

But anyway, I wanted to commend you on a thought provoking post. I think you and I are pretty close on most of what you discuss here, but I'm perhaps a good deal more pro-punishment in the sense that I tend to believe the law is an effective teacher and I don't *think* that if we had laws aimed at women who procure abortions, that all of a sudden prosecutors would go after them with a vengeance. But I could be wrong about that. I do know that "tough on crime" conservatives try to live up to their billing, at least in my state, once they gain a firm majority. So who knows?

I do sympathize with your concerns over women being pressured into abortion, or otherwise simply not grasping, under 40+ years of Roe, radical women's liberation and so forth, the gravity of what they are about to do when they go under the abortionist's knife. But again, I feel like the law itself would serve as a big deterrent, and in many cases would assist her in deciding rightly when in fact she is pressured to abort by the boyfriend, her father or whomever.

Lydia McGrew said...

Terry, thanks for your comment. I'm not particularly saying that prosecutors _would_ go after procuring women with a vengeance. Indeed, the sort of social setting in which a law punishing women would actually _pass_ has so many unknown variables that I hesitate to predict.

However, I generally do not think that it's a good idea to advocate laws that one doesn't actually want to advocate having prosecuted. It's a kind of "don't bluff" idea that is pretty deep-seated with me. That's why in the post I suggested a law that I think _could_ be workable--that is, involving the affirmative defense.

Even concerning that, though, it's important to remember that our own cause has to decide on its goals, and I think it's extremely poor prudentially for us to have that as one of our goals.

As far as deterrence, anecdotally, _many_ lives were saved by the status quo ante, when the abortionist was punished (not even as harshly as I would advocate their being punished) and the woman was not. My own life among them. I was conceived out of wedlock and almost certainly preserved from death (this is based on what I have been told about the history by someone in a strong position to know) by the fact that abortion was illegal in the state in question and that a trip to Mexico would have been necessary to kill me by abortion. By an abortion just as illegal but apparently regarded as more accessible, Mexican laws not being enforced against the abortionist as consistently, I gather. Horror stories from women who had taken the Mexican route to an abortion saved me. Plenty of horror stories could be told now in the U.S. as well (even from the perspective of what the woman goes through), but the strong _perception_ is that if you go to a "reputable clinic," abortion is "safe and legal." My point is that the deterrent effect of law was quite strong when abortion was illegal _without_ the woman's believing that she herself would be liable to legal punishment.

Lydia McGrew said...

It would be interesting to list the number of laws in the U.S. that punish the one offering a particular service but not the one procuring it and to see their effects. Most of these will be for things that are not intrinsically wrong, but I think it would be instructive. Take dumb things like hiring an unlicensed electrician. I've had a plumber tell me he would not hook up my new disposal, even though they knew how, because he wasn't properly licensed and could get in trouble. I had to hire an electrician separately. Or selling unpasteurized milk. I have friends who have various ideas (most of which I question, but whatever) that unpasteurized milk is good for you, but they can't find any outlet to buy it. A friend of a friend told her that she could get in more legal trouble for selling her unpasteurized milk than for selling her drugs, which may be true.

Now, these are silly examples, because they are silly laws. But my point is that if it can become virtually impossible to buy unpasteurized milk in the country when the one procuring it isn't punished at all but the one selling it conceives of himself as getting in big trouble, it seems like even more severe legal punishment for abortionists could be very effective indeed.

Lydia McGrew said...

By the way, I strongly affirm that law is a teacher, which is one of many reasons why I want abortion to be illegal and the abortionist severely punished. What I think is happening is that pro-aborts are trying to tell us that we are "inconsistent" if we don't positively advocate having this teaching function carried out by legal punishment for the procuring woman. It's a kind of concern trolling by the pro-aborts, and we pro-lifers shouldn't allow ourselves to be drawn into it. (Nowadays there is also concern trolling by the alt-right, and what is really scummy about that is that *in between* sneering and scoffing at mainstream pro-lifers for their inconsistency and their unwillingness to punish women and kick the so-called "SJWs," they will occasionally come out with the truth and start scoffing at pro-lifers for caring about abortion at all! So they are not true friends of our cause, that's for sure.) What's noteworthy is that law _was_ teaching the evil of abortion and the humanity of the unborn child _before_ those laws were struck down, and that not having the woman punished wasn't preventing it from having that teaching effect. So why should we think that it can't? I submit that it is because of a mistaken view of how the notion of consistency actually works in a legal context and because of the idea that the law cannot possibly teach the evil of abortion if everyone involved isn't legally punished. But history itself shows this to be false.

Tony said...

That is why mens rea is such an important legal principle.

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.

Lydia, I am not sure you are using "mens rea" as the expression is applied at law. As I understand it, the concept is that to be criminally guilty, you have to have known and intended the act that is a crime, and you have to know it is against the law. You don't have to know WHY it's a crime, you don't have to understand the metaphysical nature of the act, you don't have to know all the ins and outs of why it is wrong. All you have to have, for criminal guilt, is to know that THIS ACT HERE BEFORE ME is the act that is against the law, and then intend the act.

This is a fairly easy thing to prove positively with abortion. If the law defines abortion by something straightforward but not in contentious terms, like "destroying a fetus" or "ending a pregnancy by killing the fetus", any woman who knows she is pregnant and goes to an abortionist because she doesn't want to have the baby, and knows there is a law against abortion, meets the requirements for mens rea. It simply DOESN'T MATTER whether she knows, or agrees, that "that with which she is pregnant" is a human being. If she knows that she is pregnant, and knows that by having an abortion she will no longer be pregnant, that's enough. Frankly, almost any woman who knows she is pregnant knows enough.

What you are pointing out is that many (perhaps even most) women today don't know enough to know WHY such an act would be against the law. That may be true, and it certainly would diminish culpability. But that kind of thing also diminishes culpability for a lot of laws that we don't understand the reason for, even though we know that the law is there. Plenty of teenagers know THAT buying drugs is illegal, they simply don't need to know why such laws were passed to meet the mens rea test. If they can distinguish between "buying illegal drugs" and "buying over-the-counter medicine", they know enough for mens rea.

I would prefer to simply lay out reduced penalties for lots of actors other than the doctor, and base that on lots of reasons having to do with diminished culpability. Nuts to the liberalistas who claim that we are being "inconsistent", they don't understand or agree with guilt-based punishment to begin with so their reasoning is out to lunch from the first. Throw sticks at them, it's all they deserve.

Tony said...

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.

I don't quite understand where you are going with this. As far as I understand it (which is not very well at all!), the typical "affirmative defense" rationales are circumstances that either change the nature of the act, change the culpability in fundamental ways, or express a broad basis for the state not intending to seek judgment:
If you kill someone, "self-defense" changes the act from murder to a legal act.
If you are insane, you cannot know the nature of what you are doing.
If you are past the statute of limitations, the state has said "we don't intend to seek your punishment anymore" for reasons that are more good for the state than good for you (probably, I suspect, due to difficulty of establishing evidence and witnesses).

For abortion, I don't know that we want to use "he pressured me into it" as a form of affirmative defense so much as a form of mitigating circumstance. It doesn't really speak to altering your condition that you knew the act consisted of "abortion" that was against the law. As for "lack of knowledge", since an affirmative defense lays the burden of proof on the person claiming it, you have to establish that "I didn't know", and that negative is a harder thing to prove, as we all know from logic class. "He lied to me" would be a start to an affirmative defense, but it would have to be contained within a larger picture of due diligence, so a single actor lying might not be enough:

Rule 11 of the Federal Rules of Civil Procedure requires that affirmative defenses be based on "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,"

All in all, it might be simpler and more useful to simply lay out reduced punishments for the women, and then add in further reductions for mitigating circumstances that are easily established (being out of wedlock, established instances of abuse, and extreme youth (below 17) are easy; more nuanced ones might be clear poverty, or severe health condition).

Lydia McGrew said...

Very interesting legal point about mens rea, Tony.

I'm not sure that I would want to define the relevant point _entirely_ as one of "knowing why the act is against the law." My reasoning would go thus: The goal in punishing the woman would presumably be to make the act a form of _homicide_. I would assume (perhaps wrongly) that those telling us that we must aim to punish the woman would not be satisfied with making "abortion" a sui generis act of procuring a medical service which has been made illegal in some black-box fashion. Their whole idea (and this fits with the claim that it must be done because of the teaching nature of law) is that abortion should be punished as a version of willful homicide (non-accidental) and the woman punished exactly as one would publish someone who hires a contract killer to bump off his wife. That is supposed to be "the only consistent position."

Now, in that case, it would seem that not realizing that the act one is committing *is really a form of deliberate homicide* would be a relevant kind of defense, since the prosecution is for a form of deliberate homicide. It would be related to (though obviously with genuine differences) scenarios in which one shot someone by accident in the trees while hunting, not realizing that there was a human being there.

"the typical "affirmative defense" rationales are circumstances that either change the nature of the act, change the culpability in fundamental ways, or express a broad basis for the state not intending to seek judgment"

I would think most of the relevant mitigating conditions here would fall under "change the culpability."

I'm not certain (but am willing to be corrected) that there is any hard and fast distinction between things that "ought" to be treated as mitigating circumstances and things that "can" be treated as an affirmative defense. My understanding is that it's a matter of positive law and that baking some mitigating circumstance into the law ab initio is a prudential judgement, not a decision that "this ought to be an affirmative defense rather than a mitigating circumstance."

Lydia McGrew said...

What continues to amaze me about people (and believe me, Tony, I _don't_ mean you, here) who disagree contemptuously with me on this is that they will repeatedly imply that I think women can't be callous conspirators to do murder in the act of procuring an abortion, that I think women are never morally responsible agents in this area, etc. Greg said so above, despite my _explicit_ statements to the contrary in the main post, and I just saw another blogger implying the same. It's very bizarre. I guess it's just missing a few little words here and there or something. Like "There are indeed heartless women who have abortions" and the like. How many times, I wonder, does one have to say it? There are women who heartlessly, callously, knowingly have their children killed in abortion, who are fully responsible for doing so, and whose just deserts include punishment for doing so. I even said in the main post that there are probably more of them than we'd like to think.

So the argument has never been about whether such women exist. They undoubtedly do. The argument has been about whether we are _obligated_ as a matter of consistency with our moral position to seek the punishment _generally_ of women for procuring abortion, given that there are also women (also many of them) who consent to abortion right now who don't fall into that category. And if not, whether it is a good idea prudentially for it to be a stated, important, definite goal of the pro-life movement as such to encode punishments for the procuring women in law.

Unknown said...

Lydia, my concern is that by not having a law on the books that at least allows for the prosecution of abortive women (even if most are not prosecuted, and even if the penalty is far less than what we give abortion providers) there will be more abortions than there would be if we had such a law. I have two reasons for thinking that a failure to prosecute at least some abortive women will lead a greater number of dead babies.

First, a "no punishment" law would remove the fear that humans often need to be persuaded into obeying a law they do not want to obey. If women know they will not be held responsible for killing their own baby even if they are caught doing so, what’s the motivation not to seek out an illegal abortion? If a woman who hated her husband and wanted him dead knew that she would not be punished for hiring a hitman to kill her husband even if she was caught, what's to stop her from hiring the hitman? I think more women will obtain illegal abortions given a no punishment law than would have given a punishment law.

Secondly, the law is a moral teacher. We argue that abortion-permitting laws have the effect of increasing abortions because it sends a message to the public that abortion cannot be murder if the government is allowing it. But the same would be true if the law fails to designate punishment for abortive women. It sends the message to women that we do not think their act was morally wrong (or at least not wrong enough to do anything about it).

How would you respond?

Tony said...

I would assume (perhaps wrongly) that those telling us that we must aim to punish the woman would not be satisfied with making "abortion" a sui generis act of procuring a medical service which has been made illegal in some black-box fashion. Their whole idea (and this fits with the claim that it must be done because of the teaching nature of law) is that abortion should be punished as a version of willful homicide (non-accidental) and the woman punished exactly as one would publish someone who hires a contract killer to bump off his wife.

You're probably right, Lydia, about the stance these liberals are taking. My inclination is just to tell them to take a hike, rather than try to accommodate their claims. Abortion never was treated as simply premeditated murder in the 1700s and 1800s, or at least hardly ever. We have thousands of distinctly specified crimes, rather than simply 10 commandments, because there are LOTS of different kinds reasons to distinguish one act from a similar act, not just based on their metaphysical position. It is perfectly legitimate to directly and forthrightly make abortion distinct crimes for the doctor and for the woman, and though putting it in the general "homicide" category for both, treating the former as premeditated murder (and an aggravated variety, at that), and something else for the woman. Nuts to the claim that "the only consistent position" is to treat all homicides alike, we don't do that generally so we don't have to do it here either.

I suppose that this would still leave the question of what to do with a woman who didn't grasp the homicidal nature of the act. Taking the situation right now, I see that there are plenty of women who disagree (and would continue to disagree) with that categorization. I guess that I don't have much sympathy for a woman who philosophically DISAGREES with the legislators who (we are presuming they represent a majority of the people, right?) have publicly made a law putting abortion into the "homicide" category. If she knows that "the law" treats the act as homicide, I don't think she should get to use "but I think it's just a blob of tissue" to trump the intent of the law as an affirmative defense. That she disagrees with the legislators makes her situation one of internal tension - she has to decide whether to comply with a law she disagrees with - but that's true of a lot of areas. Drug users often disagree with the legislated position that their drug ought to be illegal, that's what the whole legalizing pot has been about. We don't think that those who think using pot is actually a reasonable act should be able to use that as an affirmative defense against their having committed a crime: it isn't their judgment that legislates.

I would distinguish, for this, between those women who understand the CLAIM that the supposed abortion law is making - that it is a homicide - and those women who have been so educationally abused by our current system that they wouldn't get that change, who for whatever concatenation of causes only get that abortion has been made illegal without getting that it has been made a homicide under the law. Initially, it seems likely there would be lots of women in this boat. After a generation or two, one would assume this misunderstanding goes away.

Unknown said...

@Lydia:"I even said in the main post that there are probably more of them than we'd like to think."

Yes you did. And for anyone who doubts that sentence was was there from very early on, I read the main post within a few hours of its initial posting, and the statement was there then. And on that note, Lydia, let it be known that I *am not* one of those people you complain of above who thinks you think women can't be heartless, callous conapirators in murder. Not that you accuse me of it, but just sayin'.

Lydia: "So ... The argument has been about whether we are obligated ... to seek punishment _generally_ of women for procuring abortion, given that ..."

Yes, that has been exactly the argument, and it is the dilemma we face always with these difficult issues in which we *know* there are women, and probably more of

Unknown said...

Oops! Sorry.

... in which we *know* there are women, and probably more of them than many of us would like to admit, who are callous, cold hearted murderers of their own babies. Therefore, this whole thing is like a catch 22, "damned if you do, damned if you don't" sort of a situation, and at least a few of us (I don't know how many or what percentage of the whole) feel like we're trapped in that moral dilemma of *knowing* there are women like this, and not doing anything to punish them. So it's a tough situation all around, prudential considerations (which I understand and acknowledge) notwithstanding.

Lydia McGrew said...

Something I, for one, keep coming back to in my own mind (and in a sense this is relevant to all of these interesting comments) is that there was no punishment for the woman in law in, say, 1940 in the U.S. One of the pro-life news agencies did an article on this recently, and that is what I recall they concluded. The woman was not liable to punishment in law, but there was sufficiently severe punishment for abortionists that "respectable" doctors didn't engage in it, and I think we should aim for even more severe punishment than that.

Does it not seem that we would be doing incredibly well to have at the level of all the states either that status quo ante (as it was say in the states that punished abortion most severely pre-Roe) or even harsher punishments for the abortionist?

In that case, I find it difficult to feel bothered really much at all by the thought of heartless women going unpunished in that scenario or by the counterfactual that maybe (though we don't know) *even fewer* women would seek illegal abortions if the laws were even harsher.

Having mourned Roe v. Wade all my adult, politically aware life and having wished for the day when we can legislate against Roe, I find it rather hard honestly to believe that the only satisfactory legal position if we pro-lifers "won" and had carte blanche to legislate against abortion would be one in which the women were punished. Nor do I think that a state with a strong anti-abortion law in the 1940s had legislators who thought women weren't moral agents. I don't even know all the considerations that went into that decision. It may have been sheerly the desire to save the resources and not punish people that juries might sympathize with but rather to punish the abortionists who could easily (and rightly) be viewed as _all_ cold and exploitative, not to mention seedy.

When I think of the telos of the pro-life movement qua movement, I just cannot _see_ that telos as necessarily including laws punishing women, because it seems to me that a different legal situation could be so solid and effective in itself.

More specific responses later.

Lydia McGrew said...

Sorry, that should be "legislate against abortion" not "legislate against Roe."

Lydia McGrew said...

Unknown: It is extremely difficult to know whether, if laws were more draconian, they would be more effective or if the desired effect can be achieved with less draconian laws. Doctors tend to be extremely risk averse. I can tell you with great confidence that, if doctors are convinced that extremely stiff penalties will fall upon them if they perform abortions (that is, that these will be enforced), abortion by licensed doctors will go to near zero and perhaps zero in all the relevant jurisdictions. They just don't need the hassle in their lives.

If non-licensed doctors are prosecuted with equal vigor, I also think this will make it extremely difficult to obtain abortion in the relevant jurisdictions. Zero is a difficult number to beat, and I think it is plausible that we can bring the number of "abortions performed by some other person" down to something close to zero within the jurisdictions in question by zealous enforcement of stiff penalties against those performing abortions.

Within those jurisdictions, it's worth remembering that women who try to harm _themselves_ would, at least if caught before "successful," probably be subject to whatever laws are presently on the books that permit stopping a woman from, say, using crack cocaine while pregnant. Feminists will tell so-called "horror stories" of women "locked up" in hospitals to stop them. I don't know the ins and outs of these. They are not homicide laws; I do know that.

Any sane woman would be extremely wary of trying to perform abortion on herself. And providing "instructions" or incitement to do so could readily be criminalized (as it should be with those who provide instruction on how to commit suicide).

In general, I think the bare _possibility_ that a more draconian law _might_ prevent more of a given act is not a very strong consideration. If we are talking about deterrence, a better (and more answerable) question is how deterrent the proposed legislation will be or is found to be upon enactment.

These things can also be examined later. If legislators found that a lot of back-alley abortionists were undeterred by some set of laws, they could then consider what sort of strengthening or changing of those laws would be more effective, or if it was just a matter of insufficient prosecution.

I've addressed the "the law is a teacher" issue several times in the thread, so go ahead and search for my responses there.

Unknown said...

"I find it rather hard honestly to believe that the only satisfactory legal position if we pro-lifers "won" ... would be one in which the women were punished."

Agreed. If we could significantly decrease the number of abortions and not punish a single woman in the process, this to me is a satisfactory result because my primary focus is on prohibiting abortion, not punishing women.

I suppose this is also the position of the pro-life movement as such (of which I'm personally not really an active or participating member beyond the firm anti-abortion stance I have always taken within my own spheres of influence), and if that is the case I can hardly disagree with their position.

Btw, as per my parenthetical remark concerning my pro-life activity being restricted to my own sphere(s) of influence, this is where I'm a "hardcore," no nonsense type. As I said in a comment above, I do *genuinely* have a heart for those women who have only been taught that abortion is "no big deal." But that *is not* in any way what my children have been taught! Therefore, ...

Lydia McGrew said...

And on my side, I am not _categorically_ opposed to laws that punish women. When I keep saying that it "shouldn't be our goal," that's exactly what I mean--just that it isn't a goal in itself and that, if asked "what we want," we shouldn't be saying that what we want is a legal regime in which women are punished. And not because we are hiding or deceiving about that goal, but because it really isn't the goal. If the heartless women that are out there can't find an abortionist and reluctantly carry their babies to term, I'll be cool with that.

On the other hand, since I do not say that women who procure abortions are categorically innocent victims or that it is inherently, categorically wrong to punish women for procuring abortions, I realize that legislators have to respond to the situations that actually develop. Suppose that what I've predicted here turned out to be wrong. Suppose that some state found, after outlawing abortion with stiff penalties for abortionists, that there were some kind of horrible, perverse, self-abortion ring for women developing in which women gave each other tips on how to have abortions (maybe involving importing illegal drugs from Canada or something) but never touched each other, so nobody could be prosecuted. Then it would make sense to say that laws really _needed_ to be enacted to address that situation, and it's difficult to see how that could be adequately addressed without punishing the self-aborting women. An _occasional_ case of a woman who performed an abortion on herself could perhaps be addressed with some kind of self-harm statutes on the books or (if drugs were involved) laws against purchasing illegal drugs or whatever. But a _systematic_ mutual encouragement of self-inflicted abortions would require more specific laws to address it. Here I'm modeling my point on what we have seen in the area of suicide. I've reluctantly come to believe that we need to criminalize suicide for the person attempting it, though perhaps the penalty should be only receiving mental supervision and counseling, which is what in theory the mental health profession cum police are empowered to force upon a suicidal person anyway. But a) that isn't happening like it should and b) judges have said that you can't criminalize walking someone through a suicide since suicide itself isn't illegal. Thus, it looks like we need to make suicide illegal. If we found that the same were true for abortion, then that would have to be addressed.

Lydia McGrew said...

Here is a very interesting page on the state of existing law concerning substance abuse during pregnancy. The states (as one might expect) are a patchwork of prosecutor attempts, judicial rulings, etc.

What it comes to is that existing laws against everything from child neglect to child abuse to manslaughter have sometimes been applied and sometimes are allowed by the courts to apply to women whose children die after they abuse substances. South Carolina, according to this page, has on the books already a law against "maternal acts endangering or likely to endanger" a viable unborn child which would presumably apply to the obtaining of an illegal abortion or the attempt to self-abort.

Here is a summary of fetal homicide laws, which pro-abortionists already worry could apply to the actions of mothers outside of legal abortions (such as drinking, etc.)

My point here is that once abortion is not a legal act, any exceptions in any of these laws for obtaining a legal abortion would presumably become moot, giving prosecutors leeway to prosecute for child abuse or whatever in cases of maternal harm to an unborn child. There would not even have to be any _new_ laws _specifically_ stating that women are liable to punishment for abortion specifically. Whether or not to attempt to apply or prosecute in that fashion would then be a matter of prudential judgement in the given situation.

Nick said...

Hi Lydia,

I was about to post something disagreeing when I read your last two comments. It may be good if go back and edit your post (if you can, I don't know how blogger works), and add those two comments. Had you written that in your post, likely you would have had less opposition -- and in my opinion your position would have been more clear. I still disagree with you, but I now see we are not as far apart as I once thought.

I for one am in favor of prosecuting women who have abortions for reason of justice, and so this should be something we do as a matter of course if abortion is illegal. But on the pragmatic side I was about to point out the same scenario you dreamed up in one of your last two comments. I do believe your position leaves a big loophole for committed pro-choicers to devise some chemical or instrument women could use to have abortions by themselves, and that a profitable black market could easily develop in that case. I don't think that's far fetched at all. Why would it be far fetched when some well-known pro-choicers like Peter Singer, ethicist at Princeton, are also in favor of legalizing infanticide until a few months after birth (and to their credit, they are at least consistent in doing so)? With that type of worldview, why wouldn't you try to "help" women have abortions by using said loophole? Haven't the undercover videos about Planned Parenthood that have come out in the last few years taught us anything?

Perhaps as you wrote no new laws would be needed. But I would say the current laws would have to be consistently applied when the child is killed inside the womb (and not just for botched abortions, which is mostly what's happening). Here is another link of that sort:

I am not sure this has been mentioned here, but I am in favor of not just prosecuting the woman, but the consenting husband/boyfriend as accomplices as well. Treat abortion for what it is: murder -- with penalties for all involved.

Lydia McGrew said...

I think the main difference between us is that, in the typical situation where the woman is not the abortionist, if I'm understanding you correctly Nick, you think it important in and of itself as a matter of justice that the woman be punished as well as the abortionist. I don't consider that required in and of itself but rather a matter of prudential politics. Therefore I don't think that pursuing that *as a goal* of the pro-life movement is necessary, and as I mentioned in the main post it adds unnecessary odium to our present cause to make that a goal. We will be doing *extremely* well, and unfortunately I don't expect it in my lifetime, if abortion is outlawed with penalties for abortion for anyone--abortionist or anyone else.

However, I've never been opposed in principle to any punishment of the woman, ever, under any circumstances, and obviously if we were to end up with a "rash" of women self-aborting, that would be a case where something needed to be done if existing law did not give prosecutors enough tools to deal with it.

I think part of the problem in this discussion is that people are getting characterized as "pro-punishment" or "anti-punishment," and those categories are just insufficiently fine-grained to get at various positions.

It doesn't help of course when other bloggers who prefer "lumping" to "splitting" among those they disagree with, and who are always looking to be angry at somebody who isn't perceived as being as consistent as they are, are eager for some reason to lump me with those who view women who procure abortion as categorically innocent victims, even though the original post said the contrary from the outset.

Unknown said...

"I think that part of the problem in this discussion is that people are getting characterized as "pro-punishment" or "anti-punishment," and those categories are just insufficiently fine-grained to get at various positions."

Quite so.

Someone named Josh over at the Orthosphere said something on the subject that I think is helpful in sifting through what he calls conservative "irrationality" on the matter of punishing women, but that I would term hesitancy to do so; he said (speculating) that the thought of punishing or locking up women en masse, just *feels wrong*.

I think I understand what he's talking about; I remember first learning that my State, Oklahoma, has the highest per capita incarceration rate of women in the U.S., and my initial reaction to learning that was a sense of horror. What, I thought, could possibly be the reason for this? It cannot possibly be that Oklahoma women are that much more prone to commit crime can it? I don't think so. There are, I'm sure, many reasons for it, but ...

Part of the basis for my mention upthread of the tendency of "tough on crime" conservatives to "try to live up to their billing," was in fact this reality in Oklahoma where women are incarcerated at a higher rate than anywhere in the U.S. And while I obviously have not gotten into it enough to be able to explain exactly why this is, Josh's point about it just *feeling wrong* isn't lost on me. I'm pretty sure that if, for me, the idea of incarcerating women en masse *felt right* I would like myself a lot less.

This is not to say that I am anti-punishment, not at all; but to say I'm hesitant about putting otherwise decent, honorable, law-abiding women in prison based on a mistake that the law and every American institution has taught them for forty-plus years just ain't that big of a deal, and is sometimes even the "moral" thing to do. Moreover, the reality is that not every single woman has the same capacity for resisting pressure (from whatever source) to abort, anymore than the exact same type or amount of pressure is applied in every case.

So I'm coming more and more into agreement with Lydia's nuanced perspective. There are just so many mitigating factors to take into consideration. But yes, Nick, if we're going to go after the women who procure abortions, then by all means let's go equally hard after the men (boyfriend, husband, and let's not leave out their fathers when they apply) who pressure some of them into it!

Lydia McGrew said...

Terry, the nice thing (if "nice" is the word) is that if you make the penalties for the abortionists stiff enough and make it clear that they will be enforced, the issue would hopefully become moot.

Probably enforcement and stiffness of penalties would be a patchwork in different states, of course. But in that case, if a given state's legislators and prosecutors cannot be induced to give the abortionist himself more than a slap on the wrist at most, they sure as heck aren't going to punish the woman, so more legislative work in that state would be needed to get abortion truly made illegal in a meaningful sense.

Tony said...

It doesn't help of course when other bloggers who prefer "lumping" to "splitting" among those they disagree with, and who are always looking to be angry at somebody who isn't perceived as being as consistent as they are, are eager for some reason to lump me with those who view women who procure abortion as categorically innocent victims, even though the original post said the contrary from the outset.

Nor to have odious bloggers insist on naming a person who thinks (no, not that anyone here thinks this) that categorically procuring women should not be punished (but the abortionist should) is, per se, pro-abortion. Talk about rash judgment and calumny and whatnot!

O'Brien said...

Lydia, I've linked to your article and commented on some of the arguments you make in this recent article of mine, in case you're interested.