Why penalties for illegal abortion should not focus on the woman

In the last week or so the internet
has blown up over Trump saying
there should be some form of punishment for the woman seeking an abortion if
abortion were illegal. On the SPL FB page we posted a few links suggesting that
both SPL specifically and most pro-lifers in general disagree with Trump’s
initial answer (which he later rescinded).

Our FB page saw a lot of division in
the comments over this topic…

…with certain themes emerging. Instead
of responding via countless comments in multiple threads, I thought I’d make a
blog post.

the point of making something illegal if there’s no repercussion for it?”

I don’t think pro-lifers are very
divided on whether or not there should be repercussions. Most of us agree that
there should. We aren’t suggesting we make something illegal but have literally
zero penalties attached for breaking that law. The debate isn’t about whether there will be repercussions; it’s
about what those repercussions should look like and who they should focus on:
the doctor providing the abortion, the woman seeking the abortion, anyone else

There is a lot of precedent for
crafting laws that focus on the doctors providing illegal abortions, not the
women seeking them. Americans United for Life summarizes the situation well, explaining that the laws were set up this way both
because the woman was viewed as a second victim of abortion and because prosecuting
women seeking abortions made it more difficult to effectively enforce the law
against abortionists themselves.

a woman would be charged with murder for taking a child’s life in other
instances, why wouldn’t she be here?”

Short answer:
The culture war over abortion, as well
as some of the unique factors involved in pregnancy and child-bearing, make
this more complicated.

Long answer:
The thought experiment “What should
the punishment be if abortion were illegal?” is woefully vague. For starters there’s
a difference between talking about if (a)–bam!—abortion were suddenly illegal
tomorrow versus (b) we’re at some point in the unspecified future, and abortion
has become illegal alongside a lot of cultural changes.  If we’re talking about the “Bam! Illegal!”
scenario, I do think it would be unjust to punish women who seek abortions.

A lot of pro-lifers claim that
abortion is no different than infanticide, but that’s not true. Yes, they’re
comparable in that they both involve killing particularly helpless humans. But
they’re incomparable in that we can all see the infant. We can hold her, we can hear her coo and cry, we can see
with our naked eyes her face, her little belly breathing. She is right there,
irrefutable undeniable existence, and I think a person would have to be a
certain level of horribly, evilly messed up to be able to kill her.

The same doesn’t apply to abortion.
Most abortions are done early enough that the woman doesn’t have any direct
interaction with the embryo, save for unpleasant pregnancy symptoms. For these
abortions the tiny human is so tiny, the woman can’t feel any movements. Without
the aid of technology she can’t see or hear anything. One major difference
between (early term) abortion and infanticide is whether we can even sense the
entity we’re harming. This has huge psychological implications.

It also leaves people a lot more
vulnerable to misinformation or outright lies. Good luck using some ad hoc
philosophy to convince someone holding a newborn that the baby isn’t really a human being. 

I like Supernatural, what can I say?

But we’ve seen
this play out in the context of abortion many times over.

And that brings me to the next huge
difference between abortion and infanticide: the social messaging we’re raised
with. Society pretty universally reacts with everything from revulsion to
hatred at anyone who harms an infant. Even those without kids generally
recognize infants as vulnerable little people in need of our protection and

Contrast that with the huge,
decades-long, seemingly intractable culture war over the nature of the fetus,
with a large chunk of our country, including some of our most powerful voices,
stridently insisting there’s nothing to even talk about, no real conflict, no other entity involved besides the
pregnant woman.

We have videos of clinic “counselors” lying to women about the realities of prenatal development. We have testimony from
post-abortive women who realized with horror what the abortion really meant
when they went on to carry wanted pregnancies. We have ridiculously one-sided media coverage (Gosnell, anyone?) We have the never-ending rhetoric about “clumps of cells,”
“products of conception,” and even “parasites”—so constant it almost feels
mundane for me to write about it yet again,
but it’s always there.

The level of willful ignorance, of
outright deception, pushed on the public on this issue just has no equivalent
on the issue of infanticide, none at all. And if abortion were suddenly illegal
tomorrow, that context would be an important factor and would—and
should—influence how we would craft such a law.

On the other hand, if the thought
experiment is about illegal abortion in a culture that broadly and consistently
acknowledges the fetus as a valuable human being—part of our species, part of
our society—then I think it gives more weight to the arguments about including penalties
for those seeking abortion.

don’t see this as any different than someone hiring a hitman to kill someone
for them. Sure, the hitman should be punished, but the person who hired him should
be punished too. Seems pretty simple. ”

Mmmm, not that simple.

First, when people hire hitmen, they
unquestionably know that they are trying to have other human beings killed. And
as I explained above, it’s often not that straightforward with abortion.

But even if we lived in a society that
valued fetal life and we had all grown up learning and knowing the fetus is a
valuable human being, I think the legal response to abortion would still be
complicated. It’s complicated by the way child-bearing (and the circumstances
surrounding child-bearing) affect a woman’s state of mind. And our legal system
(rightly) recognizes state of mind as an important factor when determining
guilt and appropriate punishments.

Mens rea, Latin for “guilty mind,” is
a necessary element for many criminal prosecutions.

The idea is that it’s not only our
actions that matter, but also our intentions. This means that even if you
definitely took an action that is illegal, if you didn’t intend a crime it’s
possible you’d still be found not guilty.

And even within a guilty verdict there
are different levels of mens rea and so
different levels of responsibility. Our legal system can find that you
committed an act with (1) negligence (you weren’t aware your actions could lead
to a certain outcome, but you should have been), (2) recklessness (you knew
there was substantial risk your actions might lead to the outcome), (3) knowledge
(you knew there was a near certainty your actions would lead to the outcome),
or (4) purpose (you knew there was a near certainty your actions would lead to
the outcome and that was your goal).

In addition to mens rea, our legal system also considers necessity and duress. Basically, necessity means you committed the crime under the
belief that it would prevent a greater evil or harm from occurring, and duress means
you were forced to commit the crime by someone else.

I bring up mens rea, necessity, and duress because it’s elements like these
that (often) make abortion different than hiring a hitman. Suppose you hire a
hitman to kill your spouse because you don’t want to deal with divorce or
something. You are acting with purpose, and not under necessity or duress. I
believe most cases of abortion are not comparable to this.

Even planned pregnancy can be very
stressful; unplanned pregnancy can wreak havoc on finances, relationships, and
employment, not to mention the impacts pregnancy can have on a woman physically
and psychologically. Even if you haven’t been there yourself, it isn’t hard to
imagine how the news of a pregnancy might sound to someone who is already
struggling to support other children, or hasn’t finished high school, or is in
an abusive relationship. There are lots of scenarios in which pregnancy can
make women feel panicked. That does not justify taking a life. But, in our
justice system, it can affect culpability.

And this doesn’t just apply to
abortion. Even when a parent commits infanticide—where it’s blatantly obvious
to everyone that a little human has been killed—external pressures can mitigate
the repercussions. A high proportion of infanticide cases in the U.S. result in NGRI verdicts (Not
Guilty by Reason of Insanity), and it’s unclear how many of these verdicts are
based on the actual legal definition of insanity rather than juror conceptions
of the term. I won’t repeat the anecdotes from the link here (they are
heartbreaking and awful), but it seems judges and jurors are sympathetic to the
intense stresses that are often at play when new parents kill their babies.

And you know what? I hate even talking
about it. I hate even thinking about
it, it’s so terrible. But that’s kind of my point. Pretty much everyone agrees
infanticide is horrifying, but our legal system is still set up to account for
the context, rather than automatically treat it as straightforward murder. Why shouldn’t that approach also apply in the case of an illegal abortion?

If we lived in a society that
eliminated some of the causes of panic associated with pregnancy, it might be
different. If women with unplanned pregnancies knew they wouldn’t be let go
from a job, pushed out of a church community, ostracized from their families,
if they knew they could obtain prenatal and postpartum care, streamlined
adoption services, paid maternity leave, flexible class schedules, effective protection
from domestic violence, or any of the other countless solutions that would make
pregnancy less frightening, the arguments about state of mind would probably be
less impactful. But we aren’t there, at least not yet.

For all the reasons stated above, and
for others I’ve probably failed to enumerate, it makes sense to me that a
person could simultaneously think abortion is immoral and should be illegal and
also think any laws criminalizing abortion should not focus on the woman
seeking one.  Much of the pro-life
movement feels this way (see examples from New Wave Feminists, Abby Johnson,  Priests for Life, March for Life,
National Right To Life, and Students For Life of America).

But we had such a division on our FB
page because clearly not all of the pro-life movement feels this way, and I
want to say a few points about that too.

1) It’s not no pro-lifers. It’s a mistake to suggest that no pro-lifers think there should be some
form of punishment for the woman if abortion were illegal. If FB comments are
any indication, plenty of pro-lifers think that would be intuitive. I haven’t found
much polling data on this particular question, but what there is suggests that a portion of the pro-life movement thinks that makes
sense, although it appears to be a minority position.

2) It’s not no real pro-lifers. It’s even more of a mistake, I
think, to then switch to “no real
pro-lifer” thinks women should be punished. Let’s avoid the No True Scotsman
line. Despite what our opposition seems to think, our movement is not that
monolithic. Generally we think abortion is immoral and should be illegal, but
there’s a variety of opinions about almost everything beyond that: Does life
begin at conception or implantation or somewhere else? Should there be
exceptions for rape? For severe fetal deformities? For children who get
pregnant? Should there be a national ban or is it a state’s rights issue? If we’re
against abortion does that somehow necessitate being against the death penalty?
Euthanasia? Do we advocate for or against contraception? Comprehensive sex ed?

I could go on. And for every one of
those questions you’ll find people with opinions about what “real” pro-lifers
ought to answer. Don’t play that game. If we require agreement on all the many
facets of the abortion debate before working together, we may as well just pack
up and go home, guys.

3) They mean different things by “punishment.” Those who say there should be a “punishment”
have a wide range of views about what “punishment” would mean (which is why
here I put “punishment” in quotes). Yes, some people think she should be
charged with murder. But I’ve seen others suggest community service or
mandatory counseling. I don’t think these pro-lifers all fall into the same

4) They have different reasons for their view. Of course there are
those who think there’s no meaningful distinction between abortion and
infanticide, between paying an abortionist and hiring a hitman. Then there are those
that see the differences, but worry no repercussion at all signals the fetus is
unimportant. And there are those who see such laws akin to laws against
suicide: created so authorities have the right to intervene in order to help (I
think that’s where the mandatory counseling idea comes in). And there are those
that think there should be at least some cursory, symbolic repercussion so the
law isn’t toothless.

5) They still have different ideas about who should be punished. The “punishment” pro-lifers also
don’t all agree on how broadly a punishment would apply. There are some who think anyone who gets an abortion under any circumstances should be subject to the penalty of law. But there are many who recognize
issues like mens rea; they just don’t
think these issues mean the legal system should drop the punishment idea all
together. Instead they think it has to be decided on a case by case basis,
because however many women choose abortion out of desperation, there are some who
are in a very different state of mind, who view the whole thing quite casually. In fact that’s one of the reasons sometimes cited in the recurring push to take all stigma out of abortion.

So even though, from what we can tell,
most pro-lifers don’t think there should be penalties for women, we should keep
in mind that there are those who do and that there is a range of opinions on
that side of the debate as well.

Either way, the women who run Secular
Pro-Life recognize that the humanity of the preborn child is not at all clear to many
people, and that most women who seek abortion do so under intense pressure. We believe
it’s both the most moral position and the best legal approach to make sure penalties
for illegal abortions don’t focus on the women seeking them.

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