Pro-Lifers: Just One Question

Let me state up-front that this is not an argument in defense of my radically pro-choice position. I’ve written about and debated that position at great length elsewhere [Google]. This is an after-the-fact question that those who favor laws against abortion are morally obliged to answer:

What is the penalty?

No matter your philosophical or theological arguments for banning abortion, there has to be some legal penalty administered to violators. No matter where you draw the line, there is a line – presumably sometime before birth - when killing a blastocyst, zygote, embryo or fetus is homicide.  We aren’t talking about killing a born person, which is clearly infanticide.

A significant portion of pro-lifers consider abortion to be homicide, the same as killing any born person. That position is clearly reflected in the proposed Right To Life constitutional amendment: “No unborn person shall be deprived of life“, which both defines an “unborn” as a legal person, presumably with an unalienable right to life, from the moment of conception. There are several versions of the proposal that make this explicit, but we’ll assume that intention for this group of advocates.

Whether the proponents realize it or not, this text forbids any method of birth control which prevents the implantation of a fertilized ova in the uterus. Taking that pill “deprives” the “unborn” zygote of life, if that should occur after intercourse. If a woman takes a drug or herb that prevents her pregnancy, she has committed a heinous crime against the “unborn” zygote. So:

What is the penalty?

The pro-forma penalties for homicide (killing a “born person”) have a fairly broad range. If the act is intentional, it is classified as murder. If it is premeditated, it is first-degree murder. The penalties for that cime usually range from life in prison to execution. Assuming that it could be proven, beyond any shadow of a doubt, that a woman fully intended to kill a zygote and actually did kill a zygote, then:

What is the penalty?

We can ignore the difficulties of proving such a crime. Many murder convictions hinge on circumstantial evidence and proceed in the absence of a dead body. My question assumes that the woman has been convicted of the first degree murder of a zygote. Does she receive the same penalty as a person who intentionally and premeditatedly murders a “born person”? If not, why not?

Let’s consider the same question for those who do not want a legal ban on  birth control, or they consider it legally impractical. They are now faced with drawing a line somewhere between conception and birth. For some, this is the point when the woman knows for certain that she is pregnant. This stance makes it fairly certain that the woman knew of the “unborn” and she really did intentionally kill something. Their line-drawing could fall anywhere between two and six weeks after conception, although some women are able to remain in denial for months. Under these circumstances, there seems to be no doubt whatever about her intentions, premeditation, or the consequences of taking an abortifacient drug (terminating the implanted zygote). The “unborn person” is deprived of life.

On this stance, it doesn’t matter whether the legal line is drawn before, at, or after “viability”, since it’s not a fixed period of gestation. Instead, it’s any point at which the woman has full knowledge of her pregnancy. Her self-induced abortion is therefore an intentional and premeditated murder, normally a capital offense. So:

What is the penalty?

Many people who consider themselves pro-life favor some specified “deadline” before an abortion is considered a crime. The Supreme Court decided in Roe v. Wade that there should be two lines. Any abortion prior to viability (roughly, three months of pregnancy) could not be punished. Their logic was that a fetus at this stage did not have the capacity to survive as an “independent person” and therefore could not have the independent rights of a normal “born person.” The first trimester was also considered a meritorious “scientific” line by the court. It wasn’t totally arbitrary, nor dependent on the woman’s perception.

Following the legal presumption of viability at three months, states might “have an interest” in preserving the life of the fetus, but not if it endangered the woman’s life or health (physical or mental). We’ll get to the exceptions in a moment, but let’s assume a state legislature decided that killing a fetus after three months would be considered  homicide, the same as if she had killed a “born person.” There is no threat to her life or health, but she does it anyway, with full knowledge and the intention of killing the embryo. Again, this is first-degree murder if it were the killing of a “born person.” Should that state law distinguish between the murder of a “born” and an “unborn” person? If so, then, for the murder of an “unborn person”:

What is the penalty?

Let’s sidestep that primary question for a moment, to look at some exceptions.

The interesting thing about the Right to Life Amendment is that it has three qualifiers. First, an abortion is legal if it is “required to prevent the death of the mother,” which is one of the qualifiers used by Roe v. Wade for the state laws that apply in the second trimester. The only reason it’s interesting is that the pro-life position adopts the same logic as the court: that a person (the woman) has the right to self-defense against an imminent threat to her life. The only difference is that the Amendment doesn’t consider a lifetime, debilitating injury to be sufficient justification for the killing of a fetus. Yet, such a threat to a “born person” is usually more than sufficient to warrant killing an attacker in self-defense: it’s called “justifiable homicide”, which carries no criminal penalty whatsoever. Now, if a woman gets an abortion to prevent irreparable damage to her uterus (which is not a direct threat to her life), then:

What is the penalty? 

The proposed Amendment concludes: “That nothing in this article shall limit the liberty of a mother with respect to the unborn offspring of the mother conceived as a result of rape or incest.” That certainly makes good common sense when we’re talking about finding moral fault with a woman who wishes to terminate such a pregnancy. It was not her choice, or it was imposed by an authoritarian guardian. She should not be forced to bear the burden of the consequences of someone else’s forceful acts. However, in a legal context, it makes no sense. Does an actual “born person” lose the right to life, simply because they were conceived by coercion? Of course not. But, the purported “unborn person” does, under this Amendment. If rights are contingent on the independent acts of some third person, then all rights cease to be inalienable.

More important, these two exceptions violate a basic rule of law: the presumption of innocence. A woman who wants to take advantage of these provisions must prove that her pregnancy was coerced before she could be exempted from criminal prosecution for her abortion. Unless she can prove the exception, she is guilty. So, if a pregnant woman really was raped, but cannot prove it, and has an abortion anyway, intentionally murdering her fetus, then:

What is the penalty?

Wait a second, say pro-lifers, I don’t want any penalty at all for the pregnant woman! We should only prosecute the physicians who conduct the abortion, they say. But, this is incoherent. If a person willfully solicits the aid of another individual in order to kill a “born person,” they are prosecuted for murder. If the abortion is achieved with the willing cooperation of the pregnant woman, she is an accomplice, aiding and abetting the murder committed by the doctor. Yes, “hired guns” are directly responsible for the killing, but those who facilitate, hire, aid or assist in the killing are just as guilty of the murder charge, and receive the same penalty.

Unless the pro-lifer is willing to eliminate all of the laws against aiding and abetting murder, they are logically obliged to apply the law consistently to all murderers. The legal principle is: equality under the law.

However, let’s ignore those legal niceties. Assume that we are only going to prosecute the person who is responsible for directly committing the murder of a fetus. Will the law then extend to a nurse, family member, or friend who provides or administers an abortifacient at the request of the woman? They are also aiding and abetting the murder. If we’re going to prosecute everyone who facilitates an abortion:

What is the penalty?

This is not a frivolous question. We are talking about legal bans on certain conduct that requires government force to investigate, prosecute, and penalize the guilty. It would be ridiculous to have a law with no consequences whatever. It may be that the pro-life advocate just wants the practice of abortion to stop. If nobody does it, we don’t have to worry about what punishment might be imposed. But, the whole purpose of law is to threaten consequences if and when a law is broken. The law has to stipulate in advance what those consequences will be upon conviction. Otherwise, it is arbitrary and capricious. It isn’t a law at all until you can answer the question:

What is the penalty?

Finally, there are federalist pro-lifers. They’re not sure what penalties should attach to abortion, but they believe that states ought to impose some kind of penalty for abortion. They want “state laboratories” to test different wording and a range of penalties, just to see what works. This stance is simply an admission of moral and legal ignorance. It may be a useful political solution for some federal candidates, but it’s an evasion of the issue, not an answer to the question:

What is the penalty?

Imagine applying the federalist logic consistently to any other law. The federalist says he believes in every person’s “right to life,” but isn’t sure what that means, so let’s have each state decide whether or not they want to prosecute murder or not, letting them “try out” different penalties until they find one that works for them.

Aside from being unprincipled, such a position requires the abolition of any federal, constitutional right to liberty. It takes the disposition of some fundamental human rights away from the federal judiciary, which is a direct violation of the Constitution. At minimum, an advocate who believes that some law is necessary to restrain certain behavior, they have a moral obligation to answer the simple question:

What is the penalty?

Consistency requires that the pro-lifer’s answer to the question, in all of the above cases, is at least life in prison for the consenting woman. Those who believe abortion is worse than murder, must answer: execution.

This simple question is critical to any coherent advocacy of anti-abortion proposals. Most people never even think this through, they just feel it’s morally wrong, and therefore government force must be used to end the practice. My answer, as I warned at the beginning, is: absolutely nothing.

***

Notes:
1. I have put “scare quotes” around the words “unborn person,” since the word person has always (until recent colloquial dictionaries adopted pro-life language) referred to a human who has been born. There is no such thing as an “unborn person.”

2. I’ve used the term “pro-life” advisedly. Every plant has life, but pro-lifers happily kill and eat them. They aren’t really “pro-human-life” either, since they will scrub off living human skin cells or surgically excise human cancer cells or defective human organs (all of which contain the complete human DNA). The correct term should be simply “anti-abortion” or “abortion abolitionists.”

3. These are my personal views. They do not necessarily reflect the positions of the Republican Liberty Caucus, nor the Libertarian Party, nor their members.