Abortion, Murder, and the Law

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In his article, “The moral madness at the heart of the pro-life movement,” Damon Linker critiques the pro-life view as inconsistent. If pro-life advocates really believe that a prenatal human being has a right to life, then they should advocate for laws that make abortion not just a crime, but a crime equal to first degree murder. Linker writes, “Perhaps most abortion opponents refrain from actions that their rhetoric would seem to incite because they don’t actually believe what they’re saying. At least not fully, entirely, all the way down. Yes, they think abortion is morally wrong, but not that it’s murder in quite the way that killing tens of millions of 5-year-olds, or 30-year-olds, would be murder.”

Abortion and murder of an adult are alike in that both involve the intentional killing of an innocent person. But there are important differences between an abortion and a typical case of murder. The first difference has to do with culpability in terms of knowledge and in terms of voluntariness. If I kill my auto mechanic, it is implausible in the extreme for me to try to excuse my act by claiming that I did not realize that the repairman was an innocent human being. By contrast, in many (maybe even most) cases of abortion, the woman obtaining the abortion does not believe that her authorization is terminating the life of an innocent human being. It could be that this ignorance is culpable or that this ignorance is inculpable, but ignorance of the identity of the victim is almost never involved in typical cases of murder.

Secondly, the voluntariness of the act is often mitigated by great fear or anxiety on the part of the woman, which lessens the voluntariness of the act. When mothers kill their own newborns, as sometimes happens, it is not unusual for the punishment to be mitigated in light of the subjective factors, such as post-partum depression, that led to the killing. By similar reasoning, mothers who authorize an abortion are often motivated by intense fear, which reduces the voluntariness of the act. In many cases of abortion, again unlike typical cases of murder, duress is involved in which the father of the child, and sometimes others, pressures the woman into getting an abortion that she would have never gotten had the news of the pregnancy been greeted by all with joy.

Third, the victim of abortion – although fundamentally equal – is not equal in all respects to the victim in a typical murder. In a typical murder, the victim’s death negatively impacts the victim’s relatives and friends. The victim can no longer carry out his or her responsibilities at work or at home.   The killing involved in murder may also make other people fear for their lives. The typical murder also brings a loss for all those who contributed to the life of the victim including parents, caregivers, and teachers who helped the victim gain maturity.

Foetus_abortion

Finally, the typical murder thwarts the life-plans of the victim whose dreams, ambitions, and plans are demolished by death. These characteristics – present in a typical case of murder – are not present in an abortion. A prenatal human being does not have friends, and relatives may not even know of his or her existence. Human beings who have been born need not fear for their own lives, if killing is confined to prenatal human beings. An unborn child does not have responsibilities at work or home upon which others depend.

Only one person – the pregnant woman – has contributed to the maturation of the fetus, and this one person is the one who is authorizing the abortion. Moreover, the prenatal human being does not have plans, ambitions, and dreams thwarted by getting killed. So, although the killing involved in abortion and the killing involved in a typical murder are in the same in the most important fundamental sense – an innocent person’s life is extinguished – in many other ways, they are not the same. It makes sense, therefore, for the law to take these many differences into account when determining the punishment appropriate for abortion and appropriate for typical murder.

By similar reasoning, assassination of the president of the United States should be treated more severely by law than the murder of a regular citizen in virtue of the president’s role in society and that fact that the president’s death can adversely effect not just immediate family members and friends but potentially the entire world. So too, the murder of a regular person should be treated more severely by law than the intentional killing of a human being prior to birth.

Yet making such differentiations is consistent with holding that in terms of basic human dignity, the president, the regular citizen, and the human fetus have equal basic rights. So it is not “inconsistent” for a defender of prenatal human beings to embrace lesser penalties for abortion than for murder of post-natal human beings.

Moreover, prudential considerations of the enforceability of the law suggest that the penalties violation of laws forbidding abortion should fall upon abortionists rather than upon those getting abortions. Abortionists ending the lives of prenatal human beings typically perform their tasks as part of their regular routine without such mitigating factors. If women were subject to criminal penalty, it would make prosecution of abortions much more difficult, since women would be implicating themselves in criminal activity by testifying against the abortionists.

Like laws against illegal drugs, the law should focus on the drug dealers who profit from endangering others rather than on drug users who often suffer from their use. Similarly, laws against abortion should focus on abortionists who profit from killing, rather than women who often suffer from abortions.

Christopher Kaczor

Christopher Kaczor

Christopher Kaczor is Professor of Philosophy at Loyola Marymount University and the editor of O Rare Ralph McInerny: Essays and Stories about a Legendary Notre Dame Professor.