This column by Anna Quindlen has generated some discussion among the “pro-lifers” at The Corner. As I’ve been through in detail before, the idea that abortion can be a serious violent crime against a human life but that the women who are primarily responsible for obtaining them should face less legal sanctions than jaywalkers is a transparently irrational and incoherent position. And yet, the director of the Pro-Life Action league says “That is the way it has always been in this country. That the way it will most likely be when abortion is once more illegal,” therefore giving away the show. A few responses to individual arguments:
- Needless to say, we get the classic paternalistic sexism expressed by Kennedy in Carhart: “[t]he woman is also the victim.” Or, in other words, women who willingly decide to commit acts that pro-lifers consider serious violent crimes are not rational, moral agents who can be held responsible for their actions. I think my favorite example in the genre is Patterico’s claim that women shouldn’t be punished because “these women are often more pathetic and desperate than the doctors.” Needless to say, if we can’t apply criminal sanctions against classes of individuals who can plausibly be described as tending to be “pathetic or desperate,” Patterico (a prosecutor) would be out of a job. This doesn’t make a shred of sense, and doesn’t represent a principle that conservatives would apply to any other area of criminal law. As the pro-life operative inadvertently reminds us, this idea that women who initiate the process of getting abortions are “victims” who cannot be held responsible for their actions is an anachronism from the time in which women couldn’t vote, practice law, etc, etc.
- There’s an additional problem here, which is that under this statutory scheme, self-abortions cannot be punished. Again, if one takes the only legitimate reason for banning abortion (to protect fetal life, which is enough like a baby to justify the state using coercion to force women to bear the health and life burdens of carrying a pregnancy to term) this makes no sense at all.
- Ramesh Ponnuru tries to make a pragmatic argument: “[t]he crucial legal goal of the pro-life movement is not any particular set of punishments. It is that unborn children be protected in law.” This argument fails for a number of reasons. First, again, I very much doubt that Ponnuru is willing to consistently apply the principle that deterrence is the only reason for criminal sanctions to any other area of law. But more importantly, he writes as if the question of whether only punishing doctors could prevent most abortions is hypothetical, when if fact we have extensive historical evidence that it will not work; wealthy women had consistent access to safe grey market abortions under such schemes, and poor women generally went to the black market or self-aborted. The fact that obtaining information and technology to perform self-abortions has become easier makes it even less likely that such schemes will work to substantially protect fetal life, although they will succeed in killing or maiming some of the women who are allegedly “victims” supporters of forced pregnancy are seeking to protect.
- Which brings us to the one defensible argument Ponnuru makes: his premises, or at least some versions of them, “do not even require (or preclude) criminal penalties for the abortionist.” One can, it’s true, have pro-life moral premises that stop short of claiming that a fetus is like a baby and conclude that criminalizing abortion makes no sense because it’s a highly ineffective way of protecting fetal life that also entails gross inequities and negative effects on the health of poor women who seek abortions. (Although this is obviously not true of arguments that consider fetuses legal persons, for example.) Somehow, I doubt that this is the conclusion he’s likely to reach. At any rate, while “pro-life” moral premises do not require criminalization, it remains completely irrational to exclude women who obtain abortions from criminal punishment altogether while punishing doctors.
It’s very straightforward:”pro-lifers” who believe that women should not face any legal sanctions for obtaining abortions that are otherwise criminalized 1)don’t take their own underlying moral premises seriously or 2)don’t consider women moral decision-makers responsible for their actions. There is no third option.
[Also at TAPPED.]