Friday, April 1, 2016

Trump and the Pro-Life Underbelly

Donald Trump says he is pro-life, which is to say, anti-abortion.  (Who is against life?)  So, when asked whether, if abortion were illegal, a woman who has an abortion should be punished, he answered, in effect, yes, because it's hard to make something illegal and not punish those responsible for it.  This was a major gaffe, in political context.  Professional pro-lifery has tied itself in logical knots to avoid that very question, but, not being a member of the club, Mr. Trump answered it naively, in every sense of the word, thereby revealing that the pro-life movement has no philosophically consistent legal path to proscription.

I say this without taking the contrary position that abortion should be legal.  That's for another day.  Nor am I saying that, if abortion were illegal, the woman who requests the procedure should be punished.  But I am saying that the philosophical underpinning of the pro-life movement - abortion is "murder" - is untenable.  Rather, abortion raises subtle issues of what "criminalization" of an act means, of who has standing to deter and/or punish and/or demand compensation for the act.  Those issues are rarely presented in so riveting a setting.

The standard pro-life "argument" against prosecuting a woman who procures an abortion is that she is a "victim," too.  But a victim of what?  Certainly not homicide, as she is not dead, nor is any attempt made to kill her.  Not battery, as she has given permission to the touching.  Indeed, what possible "victimhood" can be attached legally that does not impinge on her rights as a free citizen to do with her body as she chooses?  In the ordinary case, where a woman who did not want to become pregnant seeks an abortion to "fix it," there is no reasonable interpretation of "victim" that fits any of our legal modalities.

If the woman who has an abortion were a "victim," could she not sue for damages?  Could she not be the complainant in the criminal case against the doctor? "That's the bastard who performed the procedure I so desperately wanted and so willingly underwent and paid for!"  I understand the patriarchal, theological, condescending "poor girl didn't know that she was being victimized" argument, especially in the case of a minor who acts without her parents' permission - a whole 'nother can of worms - but if a woman of full age requests the procedure, calling her a "victim" is an insult to her autonomy as a human being.  It is nonsense, except insofar as everything we do can be chalked up to human frailty, so that every bad decision we make turns us into the legally defined "victims" of whoever might conceivably gain by the transaction.  Caveat emptrix.

Because the philosophical fiction that the woman is a victim won't work as a legal fiction, the only logically sound approach to criminalizing abortion is to argue that it is not a crime against the mother or the child but that it is a crime against the state, like polluting the drinking water.

The key distinction between such crimes against people and crimes against the state lies in the nature of the state's purpose in punishing these two types of crime.  In the case of a crime with an individual victim, the public punishment is meant to serve, among other things, as an adequate substitute for personal vengeance.  The perpetrator must be punished in a way that relieves the victim of the need to do more.  But how does that logic apply to the "crime" of abortion?  The people of whom the victim (the fetus) might be the natural object of affection are implicated in the crime.  Surely, they could not demand vengeance.  If there is no one to demand retribution for the child's death, the constraints on the legal response to the action are reduced.

Under the "abortion is murder" view, abortion and infanticide would be equivalent delicts.  Yet, absent special circumstances, I doubt there is a pro-lifer anywhere who thinks a mother who kills her living child is also a "victim."  How does the unborn nature of the child, allegedly irrelevant to the pro-life claim that life begins at conception, suddenly change the mother from killer to victim?   Griswold v. Connecticut involved a statute that did punish the user of contraception.  Thus, under the Griswold statute, the "mother" was a criminal, and under the laws against infanticide - i.e., the homicide laws - the mother is a criminal, but under pro-life dogma, the mother is a victim.  Only in America!

To sustain the pro-life result - abortion is illegal, but only the practitioners get punished - abortion has to be a separate and distinct affront to the good order of things, either as a form of moral pollution, or as an illegal assault on the continuation of the society through reproduction.  I am not saying that such an approach is permitted under our Constitution, only that logic allows only that approach without also making the mother (and her co-conspirators) criminals.

In China under the one-child policy, a disturbing trend arose in the survival rates for infants.  More boys than girls survived, because, if a Chinese family could have only one child, a male would more likely prove to be an asset.  Once could see, then, how the state would have an interest in the survival of baby girls qua future adult females in a stable society, such that, without considering the fetus a "victim," the performance of an abortion on a female fetus could be considered a crime against the public welfare, whereas "abortion" per se, might not be criminalized at all.  In that case, because the state's only interest is deterrence, and not vengeance, the choice of whom to punish is a matter of administrative convenience: one charges the person whose behavior can most easily be modified. 

A similar statist view could be taken of abortion generally.  Practical and moral arguments are available, so long as we don't look at the Constitution.  The practical argument against abortion is the same as the argument against contraception: the availability of contraception increases the likelihood of sex ands conception outside of marriage, matters in which the state might take an interest.  The moral argument is more subtle: a society that indulges the killing of unborn babies is coarsened by the indifference to life.  We might, therefore, outlaw abortion by punishing whomever punishing will most effectively deter from the act.  Either way, once the attention is turned on the reproductive aspects of the issue, and not the homicidal aspects of it, we can see our way clear to punishing only the doctor.

But once we turn our attention to the reproductive issues, we run headlong into Griswold and, of course, Roe v. Wade, a Solomonic solution that cuts the baby temporally in thirds.  Pro-life advocates have "officiially" decided not to fool with those cases by saying instead that abortion is murder because life begins at conception.  But then the mother et al. become complicit, so we have to make her a "victim," which becomes an excuse for leaving her out of the criminal statute even though it makes no damn sense and belies the "abortion is murder" claim on which the constitutionality of the proposed ban is based.  They are, so to speak, trying to be a little bit pregnant.  They should know better.

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