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, January 30, 2009

More on abortion and the Holocaust

[Post moved.  rg.]  I appreciate Rob's post, and the very engaged, and engaging, comments it has prompted.  I avoid comparing our abortion regime to the Holocaust, but not because I have any doubts that our abortion regime involves monstrous injustice.  For me, the reluctance reflects more my dislike, as a general matter, of the promiscuous use of the term Holocaust, a dislike that, in turn, results from a sense that, in some quarters, the true magnitude of the evil that was the Holocaust is downplayed or denied.

Whether we use the word though, I suspect Rob would agree that there are ways -- non-trivial ways -- in which our abortion regime is like the legal regime that authorized and facilitated the Holocaust.  And, there are some similarities between the theoretical premises underlying the former and those underlying the latter.  ("Some lives are not worth living," for example.)  We can, to be sure, also identify distinctions -- it strikes me that the actions of someone who (intentionally) shoots a 12 year old are almost certainly accompanied by a more culpable mental state than the actions of (to use Rob's example) a vulnerable woman who aborts her unborn child at, say, 8 weeks.  Is the mental state of, say, a doctor who performs a late-term, elective abortion on a child with Down's Syndrome clearly, or always, less culpable, than the state that, I imagine, accompanied the actions of many of those who caused deaths in the gas chamber?  I'm not sure.

Like Rob, I do not regard (maybe this is a failing on my part) women who have had abortions as "murderers", but that could be because "murder" is a term of art, which has, built into it, a finding of a highly culpable mental state, a state that I suspect is lacking in the vast majority of abortion, because I suspect that most women who have abortions do not believe they are causing the death of a human being.  (But, I also suspect, some do.)

What makes the abortion / Holocaust analogy (which, again, I do not use) work, at least to an extent, it seems to me, is that both regimes depend on a legal declaration that some human beings are not, unlike other human beings, to be protected from lethal violence (public or private).  Now, our abortion regime (in Roe, anyway) does not usually admit that it is doing this; but sometimes (e.g., when it permits late-term abortions for reasons not involving serious health risks to the mother) it does (doesn't it?).


Garnett, Rick | Permalink

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