Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, July 31, 2007

How Much Jail Time?

Writing in Newsweek, Anna Quindlen believes that pro-choice groups have found a winning strategy:

Buried among prairie dogs and amateur animation shorts on YouTube is a curious little mini-documentary shot in front of an abortion clinic in Libertyville, Ill. The man behind the camera is asking demonstrators who want abortion criminalized what the penalty should be for a woman who has one nonetheless. You have rarely seen people look more gobsmacked. It's as though the guy has asked them to solve quadratic equations. Here are a range of responses: "I've never really thought about it." "I don't have an answer for that." "I don't know." "Just pray for them."

You have to hand it to the questioner; he struggles manfully. "Usually when things are illegal there's a penalty attached," he explains patiently. But he can't get a single person to be decisive about the crux of a matter they have been approaching with absolute certainty.

A new public-policy group called the National Institute for Reproductive Health wants to take this contradiction and make it the centerpiece of a national conversation, along with a slogan that stops people in their tracks: how much time should she do? If the Supreme Court decides abortion is not protected by a constitutional guarantee of privacy, the issue will revert to the states. If it goes to the states, some, perhaps many, will ban abortion. If abortion is made a crime, then surely the woman who has one is a criminal. But, boy, do the doctrinaire suddenly turn squirrelly at the prospect of throwing women in jail. . . .

The great thing about video is that you can see the mental wheels turning as these people realize that they somehow have overlooked something central while they were slinging certainties. Nearly 20 years ago, in a presidential debate, George Bush the elder was asked this very question, whether in making abortion illegal he would punish the woman who had one. "I haven't sorted out the penalties," he said lamely. Neither, it turns out, has anyone else. But there are only two logical choices: hold women accountable for a criminal act by sending them to prison, or refuse to criminalize the act in the first place. If you can't countenance the first, you have to accept the second. You can't have it both ways.

I agree with Quindlen that pro-life advocates need to work harder on articulating what the post-Roe world should look like.  Understandably, though, the focus has been on changing a legal system where most regulation, much less criminalization, of abortion is a non-starter given the governing interpretation of the Constitution.  I also assume that many within the pro-life community would favor government regulation to shut down abortion providers without requiring that women who obtain abortions be thrown in jail.

UPDATE: St. Thomas law student Abby Johnson laments:

Too bad those documentary folks didn't interview me -- I would have had no problem answering a question about penalties for women who have abortions. As you suggested, I think the most reasonable course of action is regulating providers rather than criminalizing women seeking abortions. There are plenty of reasons women shouldn't be criminalized for seeking abortions, not the least of which is that abortion is in many cases a last resort for women who see no feasible way of bearing and raising a child ... it's almost a "necessity" defense.

No one is arguing that women seeking abortions do so because it's fun, or because it's something they want to do. In many cases, they see it as the best of the available solutions to a very difficult situation -- and none of the alternative solutions are very palatable. Friends I've known who have had abortions did so because they were scared of the life-changing consequences of bearing children and of their ability to raise and provide for these children, and didn't have (or didn't think they had) the necessary support systems to be able to adequately care for and support a child. When our answer to these fears is to kill the child rather than find ways to assist in building adequate long-term support, we've failed not only the children but also their mothers.


Vischer, Rob | Permalink

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