Is It Murder or Not?

I'm certainly no expert on the abortion issue, but I can recognize bad logic when I see it, and NRO's "symposium" in response to Anna Quindlen's new column is full of it.

Quindlen, writing in Newsweek, asks the obvious question for "pro-lifers" bent on overturning Roe: "how much jail time for women who have abortions?" Unsurprisingly, none of the anti-abortion activists who have been asked can answer. Very few have even thought about it. Quindlen accuses anti-abortion activists of "ignoring or infantilizing women, turning them into 'victims' of their own free will." Anti-choice activists claim, in effect, to want to protect women from themselves. This, she quotes Ruth Bader Ginsburg arguing, is an "anti-abortion shibboleth" reflecting "ancient notions about women's place in the family and under the Constitution—ideas that have long since been discredited."

Quindlen zeroes in on the fundamental flaw in anti-abortion discourse:

Lawmakers in a number of states have already passed or are considering statutes designed to outlaw abortion if Roe is overturned. But almost none hold the woman, the person who set the so-called crime in motion, accountable. Is the message that women are not to be held responsible for their actions? Or is it merely that those writing the laws understand that if women were going to jail, the vast majority of Americans would violently object? [...]

[T]here are only two logical choices: hold women accountable for a criminal act by sending them to prison, or refuse to criminalize the act in the first place. If you can't countenance the first, you have to accept the second. You can't have it both ways.

Apparently the argument strikes a sore note for the "pro-lifers," as NRO recruited no fewer than 17 scholars, activists, and writers to offer rebuttals. What's striking is that none of them can answer the question, either. That's because it is logically impossible to agree with all four of the following propositions: 1) Women are human beings with free will; 2) Abortion is murder; 3) Murder is a crime deserving serious punishment; and 4) Women should not be seriously punished for having abortions.

Every single one of the responses dodges this dilemma. They all pretty much fall into one or more of the following categories:

1. Infantalization. We are told several times that "the woman is the second victim of abortion." Anti-abortion laws are for the "protection, not punishment" of the woman. Abortion is a "billion-dollar-a-year industry" preying on its patients/victims (as though abortion providers were the only medical professionals to accept fees for services, when in fact they're among the least likely to be doing what they do for profit -- but I digress). Women who have abortions are typically in states of mental duress and frequently coerced into the procedure by the men in their lives. Women who have had abortions are "punished" by the inevitable trauma and depression that results from the decision and that will plague them for the rest of their lives. It's interesting that the most common response to Quindlen's argument is precisely to reaffirm what she is saying.

2. The legal dodge. A number of respondents insist, as Hadley Arkes puts it, that "the law does not need to invoke the harshest penalties for the sake of teaching moral lessons." Wendy Long says that:

The law assigns differing degrees of culpability in various situations -- including killing other people -- all the time. If you kill someone in self-defense, you get zero punishment. It does not mean that the guy lying on your kitchen floor with a knife sticking out of his chest is not dead — or not human.

But, of course, killing someone in self-defense is not murder. Is abortion murder? Or is it a lesser sort of killing? If the latter, it can't be because the act is lesser. Are social conservatives tacitly admitting that a fetus is a lesser "victim" than a person?

If abortion is homicide, what kind is it? It's certainly more than criminally negligent homicide, since it involves an intent to kill. It's almost certainly more serious than voluntary manslaughter, which at its worst involves killing "in the heat of the moment" -- hardly the case when the "killer" has planned the appointment ahead of time. Indeed, it's hard to imagine that the "crime" could be anything less than premeditated murder -- murder in the first degree. And perhaps the lawyers reading this will forgive me if I'm wrong, but my understanding of "duress" is that it excuses a person from culpability in committing a crime only if "[she] had good reason to believe, that she would be seriously harmed if she did not participate and had no other way of escaping serious harm." The various excuses the pro-lifers offer would seem to add up to little more than the kind of mitigating circumstances lawyers present in order to secure sentences of life in prison, rather than death, for their clients.

Imagine if Joe Blow kills Jake Smith -- writes "kill Jake Smith" in his appointment book for April 12th and goes out as scheduled and does the deed. Can Joe use the defense that he was stressed out, "young" and "unmarried," without a wife "standing by" him? Can his lawyer argue that "the law does not need to invoke the harshest penalties for the sake of teaching moral lessons?" How would the social conservatives react to such a defense?

Matthew J. Franck accuses Quindlen of committing the "fallacy of the complex question -- treating a compound question as though it were simple." Why do I have a hard time imagining conservatives making this argument when Joe murders Jack -- no matter how complicated the reasons for the killing might be? Is abortion murder or isn't it? If it's not murder, but another form of homicide, why is that? And if it is murder, then does murder deserve serious punishment or doesn't it?

3. The way-things-used-to-be dodge. Walter M. Weber claims that "Quindlen ingores history." Echoing some of the other respondents, Weber argues that, since women were not locked up for abortions prior to 1973, why would they be after Roe is overturned? This seems like a particularly silly argument. Just because Americans tolerated a moral and logical contradiction before, doesn't mean they should tolerate one today. Women were not treated as full human beings in 1972. Should we revert to that mentality? Weber is implying that we should.

4. Ad hominems. There's a distinctly embattled tone in many of the responses -- clearly, anti-choice theorists have heard this argument before, and clearly it frustrates them. Quindlen is derided as an out-of-touch "Manhattan socialite" and an "abortion-industry rep;" her arguments are dismissed as "sophomoric," "desperate," and "smug." None of the nasty adjectives do anything to help these seventeen writers overcome their logical dilemma, though.

5. It's Not the Point. This is in some ways the most interesting response. Again, it dodges the central logical problem, but at least it points to something of a way forward. Ramesh Ponnuru puts it this way:

The crucial legal goal of the pro-life movement is not any particular set of punishments. It is that unborn children be protected in law.

Franck actually comes closest to putting his finger on the problem when he says that "the proper approach (after Roe) is to ask, what policy would reduce the number of abortions as much as possible now?" This is one of the most peculiar failures of the anti-abortion movement. They are so consumed with outlawing the supply of abortions that they are willing to almost totally ignore truly constructive approaches to reducing the demand. This obsession even limits Franck to imagining that somehow policies to reduce the number of abortions can only be developed "after Roe," when in fact there are a number of potential policies -- focusing on women's health, access to birth control, and sex education, among other things -- that could drastically reduce the need for abortions much sooner.

If the goal really is reducing abortions, then why focus on prohibition, which doesn't work? Why not adopt pragmatic policies that will work? Seems to me like a pretty good way around the logical dilemma facing the "pro-life" movement as currently constituted -- at least those who don't want to make the argument that women are not, in fact, human beings, lest they be forced to admit that abortion is not, after all, murder.

Labels: abortion, National review

  ¶ Posted by Paul Curtis 2:18 PM