Pro-Lifers Squirm at the Punishment Question…But Why? (Part V)

A few years ago, I posted a series of blogs on the question, “If abortion were made illegal, how would you recommend punishing women if they get an abortion?”

• Pro-Lifers Squirm at the Punishment Question…but Why? (8/7/07) (referring to this post by Anna Quindlen – my original post has an old link)
• Pro-Lifers Squirm…Part II (8/9/07)
• Pro-Lifers Squirm…but Why? Part III (8/11/07)
• Pro-Lifers Squirm…but Why? Part IV (8/14/07)

Here are two further thoughts:

(1) As Greg Koukl points out in his post at STR (IV above), we can look to existing law as a guide.  We might say, “If abortion is made illegal, women should be punished according to the same standards and guidelines that men are now punished for killing the unborn.”  Obviously, I’m not referring here to the way male abortion providers are now punished, since abortion providers are not now punished for killing the unborn (generally speaking).  I’m referring to the current “Unborn Victims of Violence” or “fetal homicide” laws that treat the unborn child as a real human being.  Indeed, as I pointed out in Question 3 of Common Ground Without Compromise, the fact that Scott Peterson was convicted of a second count of murder (second degree, against his unborn child, Conner) may have been what pushed the court to sentence him to death row.  (The first count was Peterson’s conviction of murder in the first degree against his late wife Laci.)  So, in the context of how we currently punish the killing of the unborn (when it’s against the mother’s wishes), the pro-life view that the killing of the unborn should be punished similarly to the way killing already-born children is punished seems a lot less odd and a little more attainable.

I’m not saying, by the way, that everything that might be true about the Scott Peterson case (or any other fetal homicide case) is true of a woman having an abortion, whether before or after abortion is made illegal.  I’m speaking strictly of a certain principled approach to law that treats the killing of the unborn just like the killing of the already-born child.  If you read the posts above, you will see that I think all relevant factors should be taken into account when a court is considering how to punish (motive and intent among them).  So, nothing in any of these posts should be construed as saying that I think women who have abortions, broadly speaking, are intentional murderers or share any personality traits with criminals like Peterson.  Each case would have to be appraised according to its unique details, as the legal system currently does when assessing punishment for the killing of already-born humans (or wanted unborn humans, for that matter).

I suppose I should also clarify that the sound bite above (“If abortion is made illegal, women should be punished according to the same standards and guidelines that men are now punished for killing the unborn.”) is meant to intrigue.  It’s not meant to cover all cases.  Surely, if a woman other than the mother or abortion provider kills an unborn child in states with fetal homicide laws, she can also punished under those laws.

(2) What complicates this whole discussion of punishment is an implicit equivocation on the term “should.”  How should they be punished in an “ideal” legal world?  Or, how should they be punished in the real legal world, taking into account things like a transitional period between the current situation to the “ideal” one?

I think sometimes when the question is asked, the pro-life person doesn’t want to answer the “ideal” legal world version of the question because it sounds harsh in the present real legal world (“Abortion is not much more than a surgery”).  The purpose of my posts above was partly to clarify that we shouldn’t shy away from what we think the “ideal” would be (killing the unborn would be treated like the killing of already-born children), but we should also recognize that putting the “ideal” in place is complicated pragmatically, socially, and politically.  So, while we need to give a clear answer to the “ideal” question (if we shy away we appear to be inconsistent in our view that the unborn is a human being), we also need to clarify that actually putting that “ideal” legal world in place may be much more complicated even than making abortion illegal is.  And we all know how difficult making abortion illegal is.