Why Only Prosecute the Doctor? [Serge]

Anna Quindlen poses this question in this piece in Newsweek magazine. Quindlen tries to place the pro-lifer in a tough dilemma - if we favor jail time for a woman who has had an abortion, we are cold-hearted animals. On the other hand, if we support the idea that doctors should be punished for performing abortion but we should have mercy on the woman who seeks one, we must not really believe that the human fetus is intrinsically valuable.

In this symposium on NRO, Hadley Arkes answers this much better than I can, so I will quote him directly. However, there are a few points that I have not seen brought up before that I wish to add.

Ms. Quindlen that the law does not need to invoke the harshest penalties for the sake of teaching moral lessons. The point may be made at times with gentler measures. In the tradition of legislating on abortion, a certain distinction was made out of prudence: On the one hand there may a young, unmarried woman, who finds herself pregnant, with the father of the child not standing with her. Abandoned by the man, and detached from her family, she may feel the burden of the crisis bearing on her alone, with the prospect of life-altering changes. On the other hand, there is the man trained in surgery, the professional who knows exactly what he is doing — he knows that he is destroying a human life, either by poisoning a child or dismembering it. And in perfect coolness and detachment, and at a nice price, he makes the killing of the innocent his office-work. Certain women may indeed be guilty of a callous willingness to destroy a child for the sake of their own self-interest. But the law makes a prudent, tempered choice when it makes the abortionist the target of its censure and brings solely upon him the weight of the punishment.

Two additional points here. First, there is already legal precedent for punishing physicians who perform prohibited medical procedures regardless of the culpability of his patient. I'll use myself as an example. If a patient sought me out and convinced me to perform a procedure that I am not licensed to perform, I would be criminally guilty of practicing without a license. I would more than likely need to surrender my license to practice and my also face criminal charges that can end in jail time (see examples here). The patient, even if they sought me out and convinced me to perform he procedure on them, would not be liable for any charges. As a physician, my responsibility in these matters is far greater than the patient's for the very reasons Arkes explains.

Second, there is another reason why laws against abortion may be merciful to the mother. Although the number of illegal abortions that occur would probably be less than our pro-abortion choice opponents claim, it seems clear that some would occur. In that case there is a significant chance that women who received an illegal abortion would be at risk for serious medical complications. These complications would be best treated as quickly as possible in almost every case. If the law would mandate serious punishment for women who have illegal abortions, there would be a great disincentive to seeking medical care for any complication. It is reasonable to argue that the care of those who have made the poor decision to kill their child is paramount. Also, it is reasonable to hold the physician who caused these complications to a higher standard and to hold them primarily responsible for the injury.

One question that we need to address is what is our goal in crafting laws that would make abortion illegal? I believe our goal needs to be to save the greatest number of children while having compassion of women who are in a crisis pregnancy. Focusing our energy and legal punishments on the physician is the bast way to accomplish both goals.

HT: Evangelical Outpost