Guest Post: Abortion, punishment and moral consistency

Written by: Rajiv Shah, PhD Candidate, Faculty of Law, University of Cambridge

Donald Trump suggested that women who have abortions should face punishment. For that he was criticised by both the pro-choice side and the pro-life side. The latter claimed that their view is that women should not face punishment for having abortions but that only providers should. This raises the interesting question of whether the pro-life position is coherent. It would seem that it is not. If the foetus has the right to life then having an abortion is like murder and so those who abort should be treated as such. This post argues that the pro-lifer can coherently reject this implication whilst still holding that the foetus has the right to life. Since it considers the responses a pro-lifer could make this post will assume for the sake of argument that the foetus does have a right to life.

Abortion is not like murder

The pro-lifer could accept Thomson’s analysis that abortion is more like letting die than it is killing,[1] whilst also rejecting her view that there is no duty on the part of woman to support the foetus.[2] So, on that view, abortion would be more like child abandonment. Child abandonment is typically punished but the standard case involves two elements: (a) not supporting the child and (b) preventing others from giving support to the child (e.g. by failing to give the child to orphanage). In the case of a pregnancy there are no other people who could provide the support the child needs. So the wrong done in having an abortion is only (a) (since we assume there is a duty to support the child), this makes it less bad than child abandonment and murder.

Lower culpability – excuses and justification

Punishment requires consideration not just of the objective wrongness of the act but also of the culpability of the agent. An agent might benefit from mitigating circumstances that reduce or even eliminate her culpability. Those circumstances are personal to the agent and do not affect their accomplices. For example, if a women suffering from postnatal depression kills her child she is liable for a manslaughter conviction rather than a murder one;[3] her accomplices, however, would be convicted of murder. Even though the conviction for infanticide is one of manslaughter the practice of the English courts has been to never give a custodial sentence.[4] Quite clearly, this does not mean that English law treats infants as less worthy of protection than adults. Rather, it is a recognition of the special context in which infanticide occurs.

The circumstances women who have abortions find themselves in (particularly if they have illegal abortions) are such that they might perceive abortion to be an unfortunate necessity; this is quite different from the circumstances of a typical murder. Similarly, the reasons why women have abortions appear altruistic. For example, over 70% of women who have abortions in the US do so because they would be unable to care for the child or because they believe that doing so would interfere with their obligations towards their other children.  The pro-lifer would say that the end does not justify the mean. This is true, but that does not change the fact that it is miles apart from a typical murder case. However, those circumstances and reasons are generally, though not always, personal to the woman. Hence, an abortion provider would not be able to rely on them for mitigation. For those reasons the pro-lifer could explain why women should not in general be punished for having abortions but that providers should. Indeed, this seems to have been the position in the US prior to Roe v Wade.

Punishment as a means not as an end

If the pro-lifer sees the goals of punishment as deterrence and incapacitation, rather than retribution, then there might be little point in punishing women. Taking out an abortion provider will prevent many more abortions than putting women in jail. Similarly, given the circumstances in which women would have abortions it seems highly unlikely that the threat of punishment would act as much of a deterrent. For those reasons, the pro-lifer could say that there would be no point in punishing women who have abortions.

Conclusion

It seems that the pro-lifer is able to avoid the charge of inconsistency. However, it should be born in mind that the arguments used to rebut the charge are contingent and will not necessarily hold. Firstly, whilst medical abortions can plausibly be said to be letting die the same cannot be said of certain methods of surgical abortions.[5] Secondly, whilst in a typical instance it can be said that a women who has an abortion has her culpability greatly reduced this will not necessarily hold in every case. Thirdly, in some instances it might be the case that punishing women would provide a sufficient a deterrent.

So the pro-lifer cannot coherently claim that it will never be the case that women should not be punished. However, the pro-lifer is probably justified in claiming that these circumstances would be so rare that, for the purposes of enacting a general legislative scheme, women should not be punished.

[1] Thomson, Judith Jarvis. “A Defense of Abortion”. Philosophy & Public Affairs 1.1 (1971): 47–66.

[2] For an argument along those lines see McMahan, Jeff. “The Right to Choose an Abortion”. Philosophy & Public Affairs 22.4 (1993): 331–348.

[3] Infanticide Act 1938.

[4] R v Sainsbury (1989) 11 Cr. App. R. (S.) 533. The Court of Appeal pointed out that of the 59 convictions of infanticide between 1979 and 1988 none had lead to a custodial sentence.

[5] Alward Peter. “Thomson, the right to life, and partial birth abortion or two MULES for Sister Sarah”, J Med Ethics 28 (2002):99-101.

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2 Responses to Guest Post: Abortion, punishment and moral consistency

  • Angra Mainyu says:

    Hello Rajiv Shah,

    I have a couple of questions/replies:

    The pro-lifer could accept Thomson’s analysis that abortion is more like letting die than it is killing

    But at least in my experience (though this is anecdotal evidence, so I suppose I might be mistaken), most anti-abortion advocates believe it’s killing, so that option is not available to them as long as they don’t change that view.
    Also, that’s the official view of the RCC.

    Child abandonment is typically punished but the standard case involves two elements: (a) not supporting the child and (b) preventing others from giving support to the child (e.g. by failing to give the child to orphanage). In the case of a pregnancy there are no other people who could provide the support the child needs. So the wrong done in having an abortion is only (a) (since we assume there is a duty to support the child), this makes it less bad than child abandonment and murder.

    Wouldn’t actually preventing others from giving support (instead of failure to cooperate with others who could help) constitute murder or manslaughter depending on intent?

    Regardless of how one characterizes the second condition, if there is no orphanage available (i.e., not without waiting, perhaps for several weeks, as in the case of the fetus), wouldn’t she still commit child abandonment if she fails to support her child? (assuming she doesn’t have a justification for that, like imminent threats, etc.)

    Hence, an abortion provider would not be able to rely on them for mitigation.

    But there are reasons for mitigation only available to (some) abortion providers, such as helping women who would otherwise have a child they’re unable to care for, or when doing so would interfere with their obligations towards other children, or helping victims of rape, or generally help women in need of an abortion for those reasons for which they want to abort. That’s usually not the motivation of a murderer, either.
    In other words, the motivation of the abortion provider – at least when it’s not exclusively economic – is also miles apart from a typical murder case. Wouldn’t that rationale help the abortion provider too?

    Firstly, whilst medical abortions can plausibly be said to be letting die the same cannot be said of certain methods of surgical abortions.

    It seems that even though the percentage of medical abortions is growing, even as recently as 2012 surgical abortions still constituted the vast majority of abortions in the US.
    According to the CDC (source: http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6410a1.htm?s_cid=ss6410a1_e ), over 78% of (recorded) abortions were surgical abortions by curettage.

    • Rajiv Shah says:

      Hi,

      Thank you so much for your comment.

      On Thomson’s analysis: I agree that this is not how they express it but I think that it is the only way to make sense of the view of those who favour a rape exception (they then think an abortion in those circumstances is permissible because it is letting die and there is no duty to provide support because the pregnancy arose from an involuntary act).

      The RCC does accept that some abortions are not killing (they call those indirect abortions), granted they would say that such a situation is quite rare (e.g. removal of cancerous uterus) and they probably would not accept the view that all medical abortions are “indirect abortions”.

      I think Charles Camosy in his book does accept that some abortions are akin to letting die. I am not sure whether he puts all medical abortions in that category though.

      “Regardless of how one characterizes the second condition, if there is no orphanage available (i.e., not without waiting, perhaps for several weeks, as in the case of the fetus), wouldn’t she still commit child abandonment if she fails to support her child? (assuming she doesn’t have a justification for that, like imminent threats, etc.)”

      Yes I think that is true. My point is that such a case would be objectively less wrong as the case where an orphanage was available (which would be a focal instance of child abandonment)

      In that section, what I wanted to argue that is that even if we grant fetal personhood the objective nature of an abortion makes the wrong involved not as bad a typical murder/manslaughter.

      On the culpability of providers

      There were two aspects of the abortion situation which I argue diminishes women’s responsibility: (a) the sense of desperation/that there is no other option and (b) the altruistic motivation. I think (a) does not apply to the providers (though it might apply to family/friends who help the woman) but (b) does. So I do think that this factor also reduces the culpability of providers (compared to a typical murder). However, it does not reduce it as much as that of the women is reduced.

      When it comes to deterrence/prevention of abortion there are also obvious differences between providers and women. Take out one provider and you save many lives. I think those, for those reasons, one can coherently argue for punishment of providers and not of women (at least in a typical case). Having said that it is still consistent with the argument to argue that providers should not be punished as murderers (my understanding is that this was the legal position in the US pre Roe).

      Thank you for the point about medical abortions. I had assumed they were more prevalent in the US. My understanding is that in the UK it is about 50%. Of course, one could also make Frances Kamm’s argument that Thomson’s analysis also applies to surgical abortions (but I don’t find it plausible and I doubt many pro-lifers would).

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