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.

Friday, October 24, 2008

Responding to Rick and Chris

Rick says:

it is deeply unjust for the law to categorically exclude a particular group of human persons from protection against lethal violence, because this exclusion is entirely incompatible with respect for these persons' rights, but also be open to dealing with political and practical realities that counsel in favor of protecting these persons through some legal mechanisms (e.g., "unlawful homicide" prohibitions) but not others (e.g., "capital murder" statutes).

Picking up on our prior conversation about the nature of the  evil of the state's failure to prohibit abortion, I think we agreed that this sort of dignitary, equal-protection type argument is the strongest contender, and that seems to be the thrust of the first part of this comment.  But surely the first part of this argument (the mandate to extend legal protection) limits the choices available for the second part (the concession to practical reality).  It must be the case that certain legal efforts to provide protection would be excluded by the constraints imposed by the reasons why the law had to provide the protection in the first place, right?  And the basis for distinguishing adequate from inadequate state actions in this area can't merely be the consequences for reducing abortion.  If the touchstone for this were just reduction in numbers of abortions, then the argument that legal protection is mandatory doesn't seem to work.  So there have to be some specific ways of extending the state's protection to the unborn that are required, presumably ways that do not simply replicate the dignitary harm of failing to provide the protection at all in the first place.  I guess for me 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.

And this is where I think Chris's comment is relevant as well.  He's surely right that there's a wide range of options in between utterly lacking in moral agency and having no excuse at all (although I don't think I was taking advantage of that gap, if you go back and look at my original wording).  Again, I'm going to plead some ignorance of the criminal law here, but is there any example from the law of homicide where a person is, by virtue of the identity of the victim, presumed to be entitled to such an excuse?  My sense is that such defenses tend to be handled on a case-by-case basis.  Wouldn't the exceptional nature of such a categorical, ex ante excuse (based solely, as far as I can see, on the identity of the victim, no less) count against the permissibility of this approach from the perspective of the dignitary/equal-protection type argument for the intrinsic evil of the absence of abortion prohibitions?  Why wouldn't this be a species of the same sort of categorical disregard for the rights of the unborn as the failure to protect them at all?  (By the way, I wonder about the empirical grounding for such a categorical excuse.  I can see why it's convenient to make this argument, but I wonder whether it really coheres with the way most women understand the experience of abortions, particularly elective abortions early in a pregnancy.  But that is a separate issue.)

Instead of going to the rubric of excuse, which strikes me as difficult to pull off, an obvious alternative 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). 

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