LTI Q & A: How Do We Punish Illegal Abortions? [Jay Watts]

LTI recently received the following question via e-mail.  I decided to share my quick response to the question on the blog:

Question: I appreciate the work that you all are doing in raising awareness about Pro-Life Issues.  As someone who is anti-abortion, I am not in favor of people taking the lives of their unborn children because they're inconvenient.  My problem is on the legal side- I am not comfortable with the idea of sending young girls to prison for abortions either.  America is one of the leaders in prison population already, there's excessive prison overcrowding, and I can't say that filling jail cells with teenagers or unwed women is the best solution either.  What do you all propose should be done legally if people broke a law banning abortion?

Answer: In the interest of time I won't dwell on some of your phrasings that I am a little uncomfortable with in how you describe the pro-life position and will directly address the question.

We must separate the two ideas.  In presenting an argument that the unborn are full members of the human family we are making a moral argument about their nature.  What are the unborn?  Moral arguments instruct us as to what is permissible in our interactions and what natural/pre-legal obligations we have to one another (if any).  Arguing the science, philosophy, and basic ethical questions does not require any defender of the pro-life position to have a legislative plan in waiting to apply whatever ethical conclusions are reached.

Should people become convinced of the truth of the pro-life position then it is fair to begin asking the question, "What next?"  If Roe/Doe/Casey are repealed it is not likely that you will immediately see an Amendment to ban abortion.  You would return to the pre-Roe/Doe environment where laws varied from state to state.  Questions posed to pro-life defenders about the nature of draconian laws that we would see put into place or that wonder how we would punish the crime of illegal abortion can be answered by a survey of the various abortion laws of the past.  It is not an ancient past to which we are disconnected.  There is ample legal precedent and discussion to guide our next step.

One thing that is traditionally consistent in abortion laws is that they tend to be lenient on women in regards to punishment.  There are multiple reasons for this.  The first is that in order to determine that an unjustified killing has taken place for the purposes of prosecuting at the level of murder you must legally demonstrate beyond a reasonable doubt that (1) the unborn human was alive, (2) that the mother deliberately participated in an action intended to end that life, and (3) that the life ended by virtue of that action.  You can imagine how difficult that would be to accomplish. Given that difficulty it was virtually unheard of to prosecute abortion in the same manner that murder was prosecuted.

Second, the emotional condition of the women was often taken into consideration.  As much as this seems to annoy some feminists, it is not unusual for emotional considerations to enter into the sentencing deliberations in criminal law.  Third, a jury of their peers is not likely to relish the opportunity of sending women to prison for reasons associated with both the first and second issues along with others.  Fourth, the prosecution was much more interested in punishing the doctors performing illegal abortions than the women, so they fostered a legal relationship that encouraged women to trust them (the prosecutors) rather than fear them. 

Considerations like these contributed to less severe punishments routinely being sought by prosecutors against women in pre-Roe/Doe America.  It is not hard to imagine that any legislators attempting to craft new restrictive laws would proceed by examining these types of reasonings.  

Finally, if the moral argument for the full humanity of the unborn is true then we already have a great injustice taking place.  There is no doubt that proceeding to apply this understanding of nascent human life to our legal system will be challenging.  I don't think that we should decide not to punish people for violation of important moral obligations because our prisons are full, though.  Even accepting that premise without argument for the sake of our discussion, it would be colossally bad reasoning to say, "We believe that action X is the unjustified killing of human life(abortion, mercy killing, vehicular homicide, etc.), but we are already prosecuting too many other things so we need to allow it without punishment."  That can't be what follows.  

If it is true, then we need to address that moral question on its own merits and not in conjunction with other moral issues.  Prison reform needs to be addressed directly (and is by organizations like Prison Fellowship Ministries) and any decisions about how to deal with that reform must be rooted in moral reasoning specific to the problem.  We can't simply say that women can't be punished for abortion because prisons need reform.  That approach does justice to neither question.

That is all the time I have.  If you want to read in depth discussions of abortion laws I would recommend both Joseph Dellepenna's Dispelling the Myths of Abortion History and Marvin Olaskey's Abortion Rites.  Thank you for your question.