Monday, April 4, 2016

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that both SPL specifically and most pro-lifers in general disagree with Trump’s initial answer (which he later rescinded).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.

“What’s 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 involved?

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.

“If 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 love.

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.

“I 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 category.

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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