Abortion and Murder

Over at Mirror of Justice, Rick Garnett links to an essay discussing the legal treatment of abortion before Roe, and says:

In my view, there is nothing hypocritical or otherwise suspect about saying (a) our Constitution permits legislatures to regulate abortion more closely than Roe permits; (b) abortion involves the killing of an innocent human person; and (c) women who have abortions should not be prosecuted and punished like those who commit homicides against born persons.

I agree that there is nothing inconsistent about adhering to all three propositions, but I want to add a thought to his perfectly reasonable post. I think there is an inconsistency between these three propositions and the fourth proposition that abortion is "murder," at least if we are using the term "murder" in anything but the most metaphorical sense. Consider this passage from the essay Rick recommends:

To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.Why did the states target abortionists and treat women as a victim of the abortionist?It was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of the abortionist, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

I can think of no other category of intentional murder that is treated this way under the law. If abortion is murder, a woman procuring abortion is not an accomplice, she is a principal. She is the equivalent of someone who hires a hit-man to kill the victim. Although I am not a scholar of criminal law (I'm sure someone will correct me if I'm mistaken about this), I believe that such people are typically prosecuted for conspiracy to commit murder or, simply, murder.Again, I see no logical inconsistency in treating abortion differently from intentional murder, but that differential treatment suggests two things to me. First, why is abortion treated differently from murder, even by those who advocate its prohibition? I can think of several possible justifications (I'm sure there are more). One answer might be the one suggested above -- that women are victims of the abortionist. But why would that be the case, when they have freely sought out his services? We do not consider the person who hires a hit man to be a victim of the hit man. She's only a victim of the abortionist if there is something very different about procuring an abortion and hiring a hit-man. The response simply begs the question. Another 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. The other possibility is that abortion a homicide of a very different sort than is addressed by the murder laws because it is, for some reason, less culpable and is, as such, properly treated more leniently by the law. I take it that this is not the position of most people on in the pro-life movement.Standing in a different category from these justifications for differential treatment is the pragmatic position articulated in the essay to which Rick linked: that going after women is not an effective means of preventing abortion. Without the help of some notion that women are not responsible for their own actions or that abortion is a less grave form of murder, the proponent of this argument must be committed to the notion that women who procure abortions deserve to be punished for murder, but, for pragmatic reasons, society chooses not to go after them because doing so will not be (practically) effective. I.e., it's a question of policing strategy, not culpability. I'm not sure where the data is to support the notion that going after women would not (as a practical matter) be an effective way to stop abortion, but if this is the argument, it is fully consistent with the contrary social choice (on strategic grounds) to prosecute for murder women who procure abortions. (That is, its not an argument about desert and so it doesn't have much power to rebut arguments by abortion-rights advocates that, if it had its way, the pro-life movement would seek to jail women who procure abortions.) Of course, it's hard to imagine such a "policing strategy" argument being made in the context of the murder of human beings after birth, which further suggests to me that something more is at work here.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 this 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 sorts of conceptual arguments used to make the case that the failure of law to prohibit abortion is an intrinsic evil.In any event, and this is really my principal point in writing this post, given the differential treatment of abortion, I think it is highly inappropriate for advocates of prohibition (and, to be clear, I'm not accusing Rick of this) of using the rhetoric of "murder" in trying to rule out certain ways of balancing abortion against other issues about which voters might appropriately be concerned. That is, if abortion is "murder" only in some attenuated sense that justifies treating it differently from all other sorts of intentional murder under the criminal law, then I think the same differences from murder that justify that differential treatment also undermine the argument that abortion is the only issue (or by far the most important issue) that ought to matter in deciding how to cast one's vote, arguments that almost always rely on the language and imagery of murder (e.g., Cardinal George's blood-drenched language, frequent references to the killing of millions of defenseless "children," comparisons to the holocaust, etc.). I don't think that proponents of this particular mode of argument can have their rhetorical cake and eat it too.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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