According to Jeffrey S., I have “badly summarized” Lydia’s arguments. Very well. Let’s quote them DIRECTLY and respond to them.
Lydia goes through several different murder scenarios, then says this:
What do all of these cases have in common? They are all similar in that someone gets away with doing something evil that, it seems natural to think, the law ought to punish. Or someone gets a lesser legal penalty in a situation where, logically, it seems that his guilt is equal to that of someone who gets a greater penalty. In each case, however, there is a completely explicable legal reason for the lesser punishment or even the impossibility of prosecution altogether (as in the rape case). I would argue moreover that in each case the legal reason is a good legal reason and that abandoning the legal principle involved–allowing young minors to get the death penalty, prosecuting men for rape in cases where the evidence is scanty, abandoning the prohibition on double jeopardy–would be a bad idea. Yes, that means that some guilty escape, but our common law legal tradition has always held, rightly in my view, that the law should err, when it must err, on the side of false negatives rather than false positives. Also, the legal tradition of the west has been (again, rightly) that invasive legal or police procedures that are likely to harm the innocent should be eschewed, even if this allows some of the guilty to get away. That is why our Constitution emphasizes the rights of the accused. That is why mens rea is such an important legal principle. That is why the fourth amendment principle of no unreasonable search and seizure makes it impossible to use illegally obtained evidence, even if irrefutable evidence of a heinous crime, in court.
Nobody denied any of this.
One might say that all of this means that the law is not perfectly logical, if we require for “perfectly logical” that the law should always track moral guilt and mete out to every man his just deserts, letting none get away without their just deserts, at least for publicly accessible crimes (like murder and rape) that would in the general legal run of things be legitimately punishable by law. That is, in fact, not how law works in many cases, and not even just because of prosecutorial discretion. Nor would it really make sense to say that “ideally” the law would always do so, if the only way for such alleged ideals to come about would be to abandon principles like no double jeopardy, the fourth amendment, the requirement to prove mens rea, the requirement for conviction beyond reasonable doubt, and so forth. These, in fact, are parts of an extremely carefully balanced legal set-up, and we shouldn’t even be aiming to abolish them incrementally.
Nobody has denied any of this.
All of this brings me to the question of punishing women who procure abortion. This question has arisen recently apropos of the candidacy of a completely insincere and disgusting candidate who means nothing and whose words should not be allowed to cause reasonable people to go running to their computers to have a big debate, as though he really had made some meaningful and sincere pronouncement.
Saying that because Trump said it we can’t have debates about it is stupid.
In general, what these claims (“You’re an inconsistent pro-lifer if you don’t aim to have women punished for procuring abortions”) have in common is a failure to recognize this: Even in a situation where abortion was treated, as far as the abortionist is concerned, as first-degree murder (with the death penalty in relevant states), all of the general messiness of law in the real world would apply to the situation and in particular to the woman involved.
Nobody denies this.
She uses more and more ink to repeat this.
A legal situation with harsh penalties for abortionists and zero penalties for the procuring woman would be just another such rough-cut distinction made by law, based on considerations like the difficulty of proving the woman’s state of knowledge or intent, information about the prevalence of mitigating pressure and even coercion on the woman, the widespread deception practiced upon pregnant women, the fact that the woman is not confronted with the humanity of the victim in the same way that the abortionist is, and so forth. (Abortion is unique in that the victim is physically hidden, and can remain hidden, from one of the people who is complicit in the victim’s destruction.)
There are several different responses to this hideously badly argument. Cane Caldo says this:
She said that abortion is unique in that the victim is “physically” hidden, but this is a perversion of the truth. Pregnancy is visually hidden–not physically–and it is far from unique. Who has seen God? Who has seen Jesus? Who has seen the Holy Spirit? Who has seen a merely human spirit? Who has see the human heart as it is spoken of in the Bible? Who has seen Heaven? Who has seen Hell?
Who has seen marriage? Marriage, like pregnancy, is a good thing. Also like marriage it is surrounded by fears and anxieties and real sacrifice. We can see the evidence of it, but no one has put eyes on the mystery of two flesh become one. It must be accepted on faith. Under the Pro-Lifers’ terrible rule of eyeballs: If no woman has the moral agency to refrain from commitment to abortion, then no woman has the moral agency to commit to the good of marriage. There is not even a matri-gram to prevent women from becoming the puppets of divorce lawyers.
Crude has said this:
The only way for arguments like these to work is when paired with the view that women are, across the board, basically on the level of mid-teenage children in terms of decisionmaking. Such that ‘adult’ becomes a term that really only applies to men. To say that women – and remember, we’re including here 30-some year old women, sometimes those who have already had several children to begin with – have less of an understanding of their own child’s humanity than a doctor is an incredible act of argument desperation.
More of Lydia:
All of these could well make it both impractical and imprudent for the law to get involved in trying to exact legal penalties upon the woman. Moreover, the pro-life goal that every child should be recognized as a human victim and protected in law would be accomplished by harsh penalties for the abortionist as a murderer, who sees the humanity of the child in the very act of killing. And, just as the reality and humanity of the victims is not denied in any of the above scenarios where someone who is morally guilty doesn’t get his just deserts, so it would be here. Such a legal set-up does not deny the humanity of the unborn child but is based on the intrinsically messy nature of the real world in which law operates and on the difficulty of the necessary task of proving mens rea.
Mike T responds by pointing out that we really shouldn’t be taking the subjective content of a woman’s mind into account anyway:
One of members of small herd of elephants that has taken up residence in the pro-life movement’s living room is the simple fact that once abortion is outlawed, the subjective content of the woman’s mind is irrelevant when she chooses to disobey the law. Her conscious decision to disobey itself becomes the mens rea that Lydia went at length to make a big deal about.
It’s like drug dealing. A court doesn’t give two rotten dog turds what you think about the morality of drug dealing. Did you intentionally sell that crack? If so, then guess what Johnny Galt? It’s 10-20 in federal lock up for you because you intentionally violated a law that said you can’t sell drugs.
Bonald notes how easily this argument can be turned around around to abortionists:
Bernard Nathanson in his book Aborting America observes that women who procure abortions seem undisturbed by the procedure, but it often takes a greater psychological toll on abortionists. Objectively speaking, both mothers (-to-be, if you prefer) and abortionists are engaged in murder, but culpability is a more subtle thing. The abortionist may be less likely to be aware of the nature of the fetus than the mother. He lacks her maternal instinct and her genetic closeness, indeed physical connection, to the fetus. The humanity/personhood of the fetus is a philosophical rather than empirical truth, and the abortion doctor is likely to have been exposed to reductionist metaphysics and utilitarian ethics and to have been trained to think of everyone as “just a clump of cells”. It’s only fair to put oneself in the place of an abortionist. Women are continually enticing him, practically throwing money at him to perform these procedures. He has invested time and money into being qualified to perform these procedures, and he has invested his ego in the belief that what he does is a service to rather than a crime against humanity. Such things can be hard to change. In the broader culture, there is an idea people have of abortion doctors as people who snuff out fetuses, and we shouldn’t be surprised if some of them live down to our expectations of them.
Of course, I’m not saying that abortionists should never under any circumstances be punished. There may be cases where it can be proven that they are fully aware of what they are doing. This would be true if it could be demonstrated that a given abortion doctor actually harbors pro-life convictions. In this case, it may make sense to punish him.
…Look, the rest of Lydia’s post is all variations on what has been said. Lydia is trying to say that considering the specific crime of abortion we should always assume that the mother of the child being killed, who has brought the child to the abortionist TO be killed, is innocent of the crime she is being accused of to the point that we shouldn’t even be considering her case in court. As has been pointed out by many, many people, this is a terrible argument. I’m not going to go easy on it because some of my readership are friends with Lydia.