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

Some thoughts in response to Eduardo

There's a lot in Eduardo's post to think about, and I hope that others will weigh in.  For my own part -- recognizing that this is not a complete response -- I was struck by this:

. . .  A variant on this is the pragmatic position articulated in the essay to which Rick linked, that going after women is not an effective means of preventing abortion.  This sort of instrumental, prudential reasoning about the proper legal response to the problem of abortion seems perfectly appropriate to me, but it also seems to me to open 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.  That is, I do not see how one can draw a line that prohibits one sort of prudential compromise without prohibiting others.  At a minimum, this sort of reasoning about the penalties associated with abortion strikes me as in some significant tension with the arguments used to make the case that the failure of law to prohibit abortion is an intrinsic evil.

It strikes me, though, that we can "draw a line that prohibits one sort of prudential compromise without prohibiting others."  We might think (as I am inclined to think) that 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).  It is not inconsistent with the basic obligation to protect the human rights of human persons -- all human persons -- to decide that it makes sense to deal, legally, with intentional abortions (and those who procure them, and those who perform them) as a discrete category of homicide.  On the other hand, to go with a "in a pluralistic society, we have to permit abortions, while working hard to reduce their numbers" is, it seems to me, to compromise a fundamental obligation of a political community.

UPDATE:  Chris Green writes:

[In response to Eduardo's statement,] "[a]nother possibility would be that women (or, perhaps, pregnant women) are somehow not capable of full moral agency that would give rise to criminal liability for their actions.  I suspect that, historically speaking, this may have been part of the reason for the way abortion was treated (where illegal) prior to Roe.  But clearly that cannot be a reason to treat abortion differently from murder today":

Because I think there's certainly a lot of space between "not capable of full moral agency" and "having no excuse at all," I think this greatly understates the plausibility of the idea that women seeking abortions have a personal excuse (i.e., an excuse that an abortionist lacks) because of the inherent pressures of pregnancy, which haven't changed over the years.  I don't think it's improperly demeaning to women, or otherwise out of step with these modern times, to say that a woman wants an abortion the way an animal caught in a trap wants to chew its leg off.

I made some comments along these lines in a thread on Prawfs a few weeks ago.  [RG:  Do check out the post and comments at Prawfsblawg.]


Garnett, Rick | Permalink

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