The argument itself, I think, is not that difficult to answer. What is more difficult is what sort of proposal should be made regarding legislation for lawbreakers--both mothers and providers--after abortion is outlawed once again. I’d be particularly interested in hearing JivinJehoshaphat and Imago Dei weigh in on this one, as they are much sharper and articulate on these issues than me.
Francis Beckwith, in his superb Politically Correct Death: Answering Arguments for Abortion Rights (pp. 72-74), explores the issue. Much of what follows will be summarized from his helpful discussion:
The Objection
Here is how Beckwith frames the objection:
If abortion is made illegal, many women will be prosecuted, convicted, and/or sentenced for murder (a capital offense in some states), because the changed law will entail that abortion in almost every circumstance entails the unjustified and premeditated killing of an innocent person (the unborn). Such a situation will unnecessarily cause emotional and familial harm to women who are already in a desperate situation (i.e., seeking an illegal abortion).
Such laws, if instituted, will lack compassion.
If they are not instituted, the pro-lifer will lack consistency.
Two Responses
Beckwith gives two responses:
- If the argument is correct with regard to pro-life inconsistency, that does not prove that the unborn are not human persons or that abortion is not a great moral evil. It simply proves that pro-lifers are unable to consistently apply their position.
- This argument clearly ignores the pre-legalization laws and penalties for illegal abortion and possible reasons why they were instituted.
Pre-Roe, even though the law considered the unborn to be human persons, in most states women were granted immunity from prosecution. In other states the penalties were very light. In general, legislators which did incriminate the woman's participation generally imposed less severe penalties on the woman than one the person who actually attempted to induce the abortion
Summary
Beckwith writes:
By prudently balancing
- the unborn's right to life,
- the evil of abortion,
- the desperation of the woman,
- and the need for testimonial evidence in order to insure a conviction,
jurists and legislators in the past believed that the best way to prevent abortions from occurring and at the same time uphold the sanctity of human life is to
- criminalize abortion,
- prosecute the abortionist,
- grant immunity or a light penalty to the woman,
- and show her compassion by recognizing that in most cases she is indeed the second victim of abortion.
Five Considerations
Beckwith suggestion that if abortion is made illegal, legislatures will have to take the following five considerations into account:
- It is a reality that unborn humans are persons and to kill them is no different than killing a newborn baby, an infant, a small child, an adolescent, or an adult.
- Because of both the lack of education concerning prenatal development and the miseducation of abortion-rights propaganda that permeates the media, both men and women are often ignorant of the true nature of the unborn child and the philosophical arguments that support it.
- The woman who will seek and obtain an illegal abortion is really a second victim. Women who seek illegal abortions will probably do so out of desperation. It is likely that the woman will be lied to both by those encouraging her to seek an abortion as well as the paid abortion provider.
- Even if his intention may be to help the woman, the abortionist is a hired killer who is knowledgeable about his victim's nature and should be treated as such.
- The government has an interest in preventing unjustified and premeditated killing of persons, whether born or unborn, who live within its jurisdiction.
I think this is very well said.
Two Possible Objections
I see two possible objections.
First, there will certainly be situations in which the woman is (a) desperate, but (b) fully knowledgeable of what she is doing. Therefore, Beckwith's compassionate-law proposal doesn't adequately deal with her situation and guilt.
Second, it could be argued that no matter how compassionate we want to be, the effect of this law's penalty is to devalue the life of the unborn. If infanticide is a capital crime, then abortion should be a capital crime. Different penalties imply a difference of value between the unborn baby and the born baby.
Two Possible Responses
A possible response to the first objection is that laws, by their very nature, are general. They don't make distinctions. You have to write the law in such a way that it will apply to the broadest range of people. It's just not practical to write in exception-clauses into the law. (No speeding-unless you have to go to the bathroom really badly.)
Beckwith then responds to the second objection-which in some ways is also a
response to my first objection.
. . . sometimes the purpose of a penalty is not to make a value judgment about the nature of the act prohibited or about its victim, but to provide an incentive for the realization of the best possible circumstances for societal elimination of the prohibited act and protection of its victim, precisely because the act in question and the violation of its victim so morally transgresses what is indeed valuable and good. For example, in some states it is a capital offense to kill a police officer in the line of duty but not an ordinary citizen on the job, but this does not mean that the ordinary citizen has less value as a person than the police officer. Consequently, precisely because there is great value in prohibiting the act of abortion, since it entails the killing of an unborn human person, a prudent legislature will take into consideration all the variables and types of individuals ordinarily involved in the act, such as those presented in the above five acts, in order to protect as many unborn children as possible.
What do you think?
