There has to be some form of punishment.

-Donald Trump in response to whether or not women who procure abortions should be punished.

One of the most interesting outcomes of Trump’s remark about how women who get abortions should be punished is the outcry from the pro-life camp rather than the pro-choice camp. I think one can safely speculate that the suggestion has been shot down by a fairly representative and sizeable number of them. What interests me in this post however is the rather strange sort of argumentation which the pro-lifers have adopted to defend their rejection of the criminalisation of woman who procure abortions. I shall argue however that when these arguments are scrutinised more closely their incoherence will be quite evident. We cannot help but wonder whether or not the American pro-life moral logic has collapsed.

The Deontological Deduction for Criminalising Abortion

The deontological argument for criminalising abortion is incredibly simple. From the premise that all babies in wombs are lives and have a right to life, we infer that people who kill them and infringe upon their right to life ought to be punished.

Confusing Mitigation with Criminalisation

A lot of arguments by pro-lifers against criminalisation rest upon a basic confusion of issues. The question which we are dealing with at hand is whether infringing a right to life by killing, in this case foetuses in the womb, should be criminalised, not the degree or manner of the application of the punishment. Not all actions which take away the life of another are treated equally, there are different degrees of murders, manslaughter and the courts do take into account mitigating circumstances, e.g. psychological or economic pressures, intentionality, etc, etc, in lowering sentences. Prosecutors can also decide in particular cases not to prosecute if there are not enough merits for a prosecution, e.g. a timid women coerced by a forceful or domineering husband into procuring an abortion.

However the existence of factors mitigating culpability does not by itself change the fact of a crime. The question at hand is not how to apply the law in particular cases but whether the law itself should exist in the first place. Clearly from a deontological point of view it should, no matter how we want to qualify and mitigate its application in particular cases in the light of the complex facts involved.

One further side point, the objection that only the doctors and medical staff who perform the procedures should be punished, and not the women who procured their services, is as absurd as the idea that only the hitman ought to be punished and not the person who hired him.

Implicit Sexist Arguments

It is one thing to say that in some particular cases a woman may get an abortion under various social, psychological or economic pressures, that’s what mitigation is for. It is however another thing to say that woman in principle are so irrational such that their moral/human agency is crippled and none of them can possibly be culpable or responsible in principle for getting an abortion.

Needless to say this sort of arguments are oddly rather unegalitarian given our current cultural environment and we cannot help but think that there is something else going on beneath the surface of such what must seem to most rather absurd arguments. After all in other Western nations illegal abortion is actually criminalised and punished as this letter notes.

Here in the UK this has been the situation since 1861 and nothing changed with the passing of the 1967 Abortion Act. All that act did was make some exceptions from the Victorian legislation – many of them about women and doctors filling in the relevant bits of paper correctly. So around a century and a half later, flying in the face of all the advancements in women’s rights and medical technology, a young Durham mother last year was imprisoned for two and a half years for “inducing a miscarriage” using pills bought online. Currently, in Northern Ireland, a mother and her daughter are facing trial that theoretically could result in imprisonment for life for respectively obtaining and taking abortion pills.

The Aftermath: What is the Moral Case Against Abortions?

Everyone else who are not devoted pro-lifers would see the incoherence of the argument for what it is. An attempt to evade the moral burden of their position. They want to get the rhetorical benefits of calling abortions murder but avoid the moral consequences of so equating them.

Criminalisation of abortion flows inescapably from the logic of affirming foetuses as human persons and entitled to the same rights as everyone else. The only way the conclusion can be evaded is if one cripples the moral agency of woman in general. But such diminution of woman’s moral agency are premised on unacceptable unegalitarian ideas.

However if the criminalisation of abortion is rejected, what becomes of the moral basis for rejecting abortion? If abortion is no longer murder, as is the constant rhetoric of the pro-life camp, what is it? What meaning is there to the idea of persons possessing rights if there are no consequences for its infringement? Much of the moral force behind the pro-life case is that foetuses are humans and abortion is murder and a moral outrage. Rejecting these premises may cripple the pro-life fatally, or at the very least, remove much of the moral force behind the pro-life argument.

If being pro-life is no longer about affirming the inherent rights of foetuses and about the outrage of unjustly taking it away from them, then it simply  becomes a matter of maximising the number of humans lives on earth. Maybe from an economic point of view there might be something to wanting more humans and all that, however it is difficult to see how abortion is a moral issue.