Friday, October 24, 2008
Though I doubt that this is at what he had in mind, my colleague John Bronsteen has an article in the Indiana Law Journal that may usefully address the point raised by Eduardo in response to Rick’s post.
That is, Eduardo suggests, following the article by Clarke Forsythe cited by Rick, that women were not punished for procuring abortions prior to Roe because doing so was “not an effective means of preventing abortion.” Eduardo supports “[t]his sort of instrumental, prudential reasoning” but then concludes that this “open[s] the door to the notion that it might, under the right circumstances and on similarly prudential grounds, be appropriate not to attempt to prohibit abortion through the law at all.”
In his article (available here), John Bronsteen attempts to bridge the gap between criminal law theorists who attempt to account for the criminal law in terms of retributive concerns and utilitarian concerns. He concludes that it is best to understand the recognition of an act as criminal in terms of a judgment regarding the fitness of retribution and the extent of punishment imposed for any given crime in terms of utilitarianism.
Aside from these two modes of discourse about the criminal law, Catholic legal theorists (and others) might describe the controversy in terms of judgments concerning justice that are categorical in nature (i.e. acts that are “intrinsically evil” or malum per se) and judgments of a prudential nature regarding society’s treatment of those who perpetrate such unjust acts.
Whether this traditional language from the natural law tradition is employed or the more contemporary language of retribution and utility, it seems that, with respect to abortion, there is ample room to preserve the rhetoric of murder (without exaggeration, and not merely as a rhetorical device, but as an accurate description of the act) and at the same time account for the disparate forms of punishment that might be dispensed to those who perform abortions and the women who procure them.