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Why?

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Pithlord attempts to answer the unanswerable question of how people can believe that abortion is a serious criminal offense, but that the person most responsible for the act should be entirely exempt from legal sanctions. He claims that everyone, in some circumstances, believes these three premises:

*X is wrong.

*X should be legally suppressed.

*Not everyone involved in X should be subject to criminal sanction.

In the abstract, I suppose this is true; there may be reasons for specific sanctions to apply to some individual rather than others. But this is just the beginning of an argument; that such distinctions are logically possible doesn’t justify them in any particular case. And here there are all kinds of problems. To begin with, his analogy to illegal immigration is quite problematic. Leaving aside whether people think that illegal immigrants should be entirely exempt from legal sanctions–how many people believe that?–in matters concerning economic regulation in the post-Lochner era our laws in many respects (correctly) assume that employers have vastly more leverage than employees, and hence the law accepts distinctions that correct for this power differential. In areas of criminal law more analogous to abortion–which, if it is criminalized, represents a violent act–I think you’d be very hard-pressed to find a similar exemption; I certainly can’t think of one. And I, for one, do not think that the relationship between doctors and women is analogous to relationships between employers and employees.

Which brings us to the bigger problem. First of all, my claim that abortion opponents make anachronistic assumptions about the agency of women was not just a matter of formal logic; as we saw in the South Dakota task force, pro-lifers make these claims explicitly, and when the laws that exempted women from punishment were first enacted such assumptions were pervasive. And even more importantly, Pithlord conspicuously fails to identify a reason why women should be excluded from abortion statutes. If there a lot of “prudential and moral reasons” for exempting women from punishment that don’t involve reactionary assumptions about women, well, let’s hear ’em. With respect to illegal immigration, it’s not at all difficult–most importantly, under current economic conditions it’s impossible to control the supply of immigrants, making sanctions that focus on employers much more necessary. Abortion laws that didn’t punish women, conversely, were extremely ineffective. Moreover–and I have yet to have any pro-lifer come up with any response for this–given the technological advances the ability of women to perform self-abortions would be much greater than it was in 1970, and yet such abortions would be entirely excluded. Why? As far as I can tell, the prudential reasons (at least those that don’t involve political prudence, which just restate the problem in a different form) are weak, and the moral reasons for the distinction are non-existent. At any rate, the burden of proof is clearly on those who would justify treating women who get abortions differently than most people who commit acts of violence, and if there are reasons that don’t involve sexist assumptions they would seem to be one of the best-kept secrets in our political discourse.

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