After all other questions about abortion, there's really only one that’s important. by William Westmiller
(libertarian)
Thursday, December 20, 2007
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 proposedRight 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."
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in this article are those of William Westmiller only and
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Posted By: Anthony Pollock
Date: 2007-12-21 02:57:39
This is the best, most cogent and intelligent argument on the subject I have ever read. I shall have it stuffed and mounted and keep it to remind me.
I have always considered abortion, and that is an awful word isn't it? to be a no win situation for most women, she is damned if she does and damned if she doesn't and the pro life lobby doesn't help.
Your drawing attention to what it really means in law if the pro lifer's get their way is something I have never before seen and it is telling, I have long thought that these people are not really using much grey matter in reaching their conclusions and thinking with their guts. It is important too, as you say, to decide where the line has to be drawn and that really is what its all about isn't it? Now we need to open up the argument still further.
I am appalled by the need for this procedure but I try to live in the real world with real people who are frail and imperfect and do stupid things and make mistakes and would protect a woman's right to make that decision without running the gauntlet of those murderous accusations by lunatics, no matter how well intentioned, God preserve us from those who like to call themselves the the moral majority, the religious bigots who think they have a right to act for God. He wouldn't be much of a God if he needed them. I would ask them "What would Jesus do?" "Would he be standing there with you?" or would he be inside comforting the women?
Personally, on some things I am to the right of Attilla the hun and on others to the left of Jesus and I do believe in Christian morality and the laws of Moses, but I also believe in freedom and that one's salvation is in one's own hands and it is wrong to judge others and try to impose one's own morality on them. Especially the weak the troubled, and the vulnerable.
I am very happy that you brought to light the fact that if someone were to feel that abortion is worse than murder, then the answer to the penalty question must be execution. This shows the falicy of the term pro-life. Anyone who states that they are pro-life because they feel it is wrong to abort an unborn fetus, yet at the same time supports the death-penalty, and war, are obviously confused.
"What is the penalty?" An easy question. To the 'doctor' who murders the child, the penalty is being taken to trial for manslaughter. And work it out from there in the same way that any other killer is taken to trial.
To the woman who personally kills or own child or tries to find someone else to do it? A program, like what they have for drug abusers or drunk drivers, which, instead of trying to make her feel like it was OK, lets her know that she killed her own child. And perhaps it won't happen again. A woman having to live with herself after killing her own child is perhaps enough punishment. But let me guess...that's too hard of a punishment, right? It's fine for her to tear a human baby apart, but a murdering woman should not even be made to feel bad - or at least that's what I'd guess some would say.
If you believe that a baby has to draw a breath of air to have any legal protection, you are ignorant of both law and medicine. Before you assume to be more educated than "Pro-lifers", consider that the two most pro-life people in Congress are Obstetrician-Gynecologist Physicians, Representative (Dr.) Ron Paul, and Senator (Dr.) Tom Coburn.
I am an attorney and my wife is a Registered Nurse. We have three beautiful children, and my wife had one miscarriage. We have a pretty good idea about the medical-legal-moral issues involved here, and we both happen to be anti-abortion. You would do well to present both sides of an argument, and address your opponents’ best points. What you have done is to present what you say the “pro-life†position is, on your own terms, and then attack the points you present. This is not a mature way to discuss a complicated issue.
You argue that “pro-life†is not an accurate term to describe the anti-abortion position, and on that, we agree. I believe innocent life should be protected, and that murderers should be executed. I am “pro-innocent lifeâ€, and “anti-abortionâ€. This is consistent with being either a conservative or a libertarian, depending on when life begins. This is the million dollar question you fail to reasonably settle. Is it your position that a baby carried to 9 months, hours from birth, is NOT a human life?
You state: 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.I have been involved in pro-life circles for decades and have never heard that one before. Again, you make a “pro-life†point that is easy to attack, because it is not a “pro-life†argument at all. As for penalties, your assumption that penalties are normally mandated is ridiculous. Penalties usually depend on the totality of the circumstances.
Here are some suggested penalties: When a physician engages in unlawful medical practices, he loses his license to practice medicine. This is already in place. If he does it again after he loses his license, he is subject to the penalties (already in place) for “practicing medicine without a licenseâ€. In the cases of partial-birth abortion, the penalty could be criminal rather than administrative, and this would not be unusual or new. In the English Common Law, the unborn had protection starting at “quickeningâ€, which was the first affirmative sign of life. Western legal tradition has not been silent on this.
As to the poster who purports to believe in “the laws of Mosesâ€, I recommend you read Psalm 139:13,14 as a starting point, then go to Exodus 21:22-25: "If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman's husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life…"
Now, regardless of how you interpret the punishments that follow, it is not disputed by Biblical scholars that 1) punishment is due, and 2) that the unborn “fruit†is considered a “childâ€.
In summary, you have made a very complicated subject seem simple, because you failed to address the things that “pro-life†people actually believe. We are neither ignorant nor uneducated.
Why don’t you start over, and begin with “Human life begins ___ (fill in the blank, tell us when life begins, then use some citation or reason to justify it). Then, we can address it in the open market of ideas that libertarians believe in.
Lance:"I have been involved in pro-life circles for decades and have never heard that one before."
Which is why I state the question that "pro-life" advocates rarely consider. You propose that  physicians who aid and abet "murder" should lose their license, which strikes me as an odd penalty for a capital crime. But, you say nothing about any penalty for the woman.
[I may post or re-post my prior arguments on the issue, but you can find them easily by clickong on the [Google] link.
Roberto seems to think that the penalty for "murder" should be a rehabilitation program. No Name Supplied gets the point about consistency. I'm guessing he/she agrees with my conclusion about the logical answer for those who consider abortion to be murder.
As a pro-life yet pro-choice Libertarian Christian, I found your article to be challenging and thought-provoking. Abortion happens to be one of the most difficult political hot potatoes I can think of. I don't quite agree that anti-federalist pro-lifers, such as myself, would merely relegate the abortion issue to the States because we want to use the sovereign States as testing laboratories. The States have long been considered sovereign over traditional "police powers" such as local safety and prosecution of violent crimes. This is why the federal government, except for kidnapping across state lines, should not be in the business of prosecuting or deterring local violence.
That being said, you raise some questions that the pro-life community needs to better respond to. The issues of penalties and criminal investigations is interesting. I agree that for any crime the accused must always be presumed innocent. Meaning that under a pro-life justice model any woman who loses a child during pregnancy must be presumed to have had a miscarriage unless it can be proven beyond a reasonable doubt that she pre-meditated and intentionally ended the life of a fetus.
As an aside, I don't fit squarely into the pro-life camp because I reject the Vatican's definition of life beginning at conception. I consider life to begin not when a zygote occurs but when the heart and the brain of an embryo begin working. These are the two distinguishing signs of life for post-birth human beings. I consider someone who is brain dead to be dead regardless of the beating heart or the hospital machine. I think this is more consistent medically than a dogmatic degree that life begins at conception because a church authority says so.
This doesn't mean that I think that zygotes should be harvested and tested as we want. We as a society rightly respect the dead bodies of people even though they have ceased to exist and are no longer endowed with natural rights. There is still a miracle of life somewhere in the mix. But no one should be prosecuted for the murder of a cadaver.
All in all, thank you for the thought-provoking article. It will be something worth mulling over. The enforcement of a penalty by government should always be an important topic when it comes to Liberty, even though in my opinion there is never a moral or ethical reason to abort a fetus unless there is no hope whatsoever (if ever) for the life of the mother.
I am Pro-Life and I don't understand why it is that you believe that this is such a radical (or problematic) issue. Abortion was illegal in 31 states prior to Roe v. Wade. Abortion is still illegal in many countries. In Mexico, for example, a woman who is convicted for having an abortion can be incarcerated for more than six months.
I don't see this as an issue which would deter anyone from a Pro-Life position unless they were already predisposed not to be Pro-Life.
If your argument is just that you believe that such sentences are too lenient for what someone considers to be morally equivalent to murder, then you might have an argument to make from a philosophical point of view, but the law is not philosophy. If you frame the argument by asking pro-lifers what they believe would be a penalty consonant with their moral views, then you've gone off topic, because presumably the subject is what laws we would hope to enact. If you act us what laws we hope to enact, then our views about the most morally appropriate punishment are beside the point.
I run a pro life clinic and see the dual standard every day. A father has no say in the decision of his own offspring, subsidized medical coverage that treats a pregnant woman as 2 people, and grant money avaialbale to help "children" but includes prenatal coverage. They are all human people in these circumstances. The answer to your question, the penalty? Don't come down hard on the women already in a tough spot, make it illegal to perform the abortion. Selling your own kidney is illegal here in the U.S. and if you attempted it, you would be prosecuted. But the real reason it does not happen is that no Dr. would think of it because of what would happen to him. Make it a crime and the Dr's will leave the industry. It is already happening on it's own. Abortionists are harder and harder to find and few medical schools teach the procedure to any real level of competence because of the stigma of the occupation. Real medical professionals know that abortion violates everything thier profession stands for. Do not use the old line of "the abortion industry will go underground and women will die." That argument, used in the 70's, was debunked a long time ago. Those reports of the deaths due to back ally abortions were greatly exagerated to help bring about the legalization of abortion. 90% of all women regret their abortions, 95% of all abortions are due to some reason other than rape, incest or health of the mother. Lets address those concerns and the issue will go away.
Abe: "... no one should be prosecuted for the murder of a cadaver."
For the first eight weeks of gestation, a fetus is just as "brain dead" as a cadaver. For most of the remainder, it lacks the physical capacity for rational thought: it isn't a person in any psychological sense. Whether the law is federal or state is a separate question, to avoid answering the question I ask.
David Stout: "... Abortion was illegal in 31 states prior to Roe v. Wade."
Only because it had been considered a very high risk medical operation, not because it killed the fetus. It was legally classified as malpractice, not murder. Today, far more women die in childbirth than as a result of abortion ... so there are no grounds for classifying any abortion procedure as malpractice.
" ... If you [ask] us what laws we hope to enact, then our views about the most morally appropriate punishment are beside the point."
Presumably, the law you propose would be consistent with your moral viewpoint. Since the purpose of law is to impose a punishment for illegal conduct, at minimum "the punishment should fit the crime." If you consider execution or life imprisonment proper and moral as a penalty for murder - or aiding and abetting a murder - then you should be forthright about the penalty for abortion.
Kirk Bauer: " ... the real reason it does not happen is that no Dr. would think of it because of what would happen to him."
The question is: what should happen to him? What should happen to a woman who commits her own abortion? The purpose of law is not to change people's minds, but to penalize bad acts.
"... 90% of all women regret their abortions ..."
Whether they do or don't isn't relevant to the question I pose, but actual scientific studies indicate that nearly 70% of women who abort were pleased with their decision and over 70% considered it beneficial. Woman who abort have a 10% lower risk of post-traumatic stress.
Nevertheless, almost 78% of Americans believe that women who have abortions regret their decisions. The majority of those who express regret are devout Catholics or fundamentalists who suffer the scorn of their peers:
