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.

Sunday, October 26, 2008

More on punishing abortion

With respect to Eduardo's most recent post on the matter . . . He writes that "the question is whether deciding in advance not to pursue for criminal sanctions the person who has procured the intentional killing of the unborn (when the state vigorously pursues that person in every other category of homicide, at least when dealing with those who have been born) does not reproduce, within the legal prohibition, the same dignitary/equal-protection type harm that the legal prohibition was designed to remedy."  This is -- we agree -- an important question but, as I suggested earlier, I think the answer is "no, such a decision does not reproduce the same harm that the legal prohibition was designed to remedy."

Nor, in my view, does it attack the agency or dignity of women to suggest that women procuring abortions and those who perform them could be treated differently, for purposes of punishment and regulation.  Many women who procure abortions will not know all the relevant facts about abortion, fetal development, adoption-options, etc. -- and, I fear, this problem will be exacerbated by efforts in Congress to roll back informed-consent laws, etc.  The entire culture of legal abortion, and the messages that attend it, serve to obscure the truth about abortion.  Those who perform abortions, on the other hand, know exactly what they are doing and it is fair for the law to hold them to an obligation to know what they are doing.

Eduardo then concludes with the suggestion that "an obvious alternative [to an excuse regime] would be to say that, although human beings, the unborn are entitled to less than the born in terms of legal protection (which is not the same as saying no protection)."  I do not believe this alternative is attractive; one can construct a legal regime that responds to some homicides in different ways than it responds to others without endoring or communicating, in the law, the unsettling notion that some human persons are less entitled to be protected against lethal violence than are other human persons.  "Different" protection-strategies, it seems to me, are fine; but the basic entitlement to the right-to-life, and to effective protection from lethal violence, needs to be the same.

Questions about whom and how to punish are, no doubt, complicated.  Still, there is a basic human right to equal protection which, I believe, requires at least this much:  the law should acknowledge the dignity and worth of every human person by forbidding elective abortion and by taking those steps reasonably calculated to effective deter abortion.  Lots of legal steps (including steps that do not involve "murder" liability for women who undergo abortions) are consistent with this bedrock starting point; but, our currrent regime, like any regime in which it is not unlawful (and is, indeed, publicly subsidized) strikes me as extremely difficult to reconcile with what we believe, and the Church teaches, about the dignity of all human persons.


Garnett, Rick | Permalink

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