Should a Woman Be Punished for Getting an Abortion When Abortion Is Illegal?

A transcript from the Stand to Reason broadcast April 6, 2016

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Greg Koukl:

Alan, there's been a little bit of a flap that's come up in the process of the issues discussed in the presidential campaign and this one has to do broadly with the issue of abortion.  I think it represents, in some ways, a strategic challenge to pro-lifers so I thought it'd be a good idea if we chatted about it a little bit.  Why don't you take a moment and describe the nature of this issue that's come up and what challenge that represents to the pro-life view.

 

Alan Shlemon:

The question has come up about whether, if abortion was ever made illegal in the future, would we punish women who pursue and actually get an abortion? If we did punish them, what kind of punishment would they get? What's fair? What's just? This question has been brought up, as you mentioned, on the campaign trail, and so Christians and pro-lifers have been weighing in on the issue.  Of course, abortion choice advocates think pro-lifers are put on the horns of a dilemma. Basically, the idea is, Look, if we say we're not going to punish women who have an abortion, then it appears as if we're inconsistent in our value for the unborn. It's almost as if we really don’t believe that the unborn is a human being and that a woman has unjustly killed an innocent human being.

 

Greg Koukl:

Which under normal circumstances would be a homicide, and so it seems as though we're saying, Well, we're just going to give her a pass on a homicide.

 

Alan Shlemon:

That's right. Allegedly, we don't actually believe the unborn is a human being.

 

Greg Koukl:

Yes, that's one horn of the dilemma.

 

Alan Shlemon:

Exactly. Then, the other side is, what if we say women should be punished in some way for the crime of abortion. Then we come across as harsh, callous, and uncaring. Here are women who are in a vulnerable situation. They're facing a crisis pregnancy and they feel they have no way out. They make a decision to have an abortion and then we punish them.

 

Greg Koukl:

I think it might be good to get some of these issues on the table. Not so much that we're taking a big stand on it one way or another, but to help people to understand what are the issues to think about in an issue like this because pro-lifers would like to see abortion abolished. The only way to really abolish abortion, ultimately, is to make it illegal, and then the incidents of abortion would shrink to virtually nothing, which would be good for the unborn. Then that raises the policy concern, now what do we do if abortion is made illegal with all of the women who might be seeking an illegal abortion? Do we give them a pass or not? This discussion has this strategic element in making pro-lifers look bad. What has been the discussion so far that you're familiar with on this?

 

Alan Shlemon:

As you said, I obviously care a lot about the pro-life issue. So many people have sent me articles that have tried to answer this question. One of them was in The Federalist and the title is called “Why Pro-Lifers Don't Support Punishing Women for Abortion” by Rachel Lu. I'm not going to be able to do her article justice here, but I do want to point out one of the illustrations that she presents in making the case that she thinks that we should not punish women for abortions if it was ever criminalized. Basically, she creates an illustration with suicide. She says, Look, up until the 1960s, suicide was illegal. Of course, if somebody was to attempt suicide and succeed, obviously, you couldn't prosecute because, of course, they're dead. However, a lot of the attempted suicides are unsuccessful. It said, when that happened, we didn't turn around and then punish the person who committed this crime even though we might think, biblically speaking, that trying to take your own life is a moral wrong because ....

 

Greg Koukl:

It's a type of homicide.

 

Alan Shlemon:

It's a type of homicide, right.

 

Greg Koukl:

Self-homicide.

 

Alan Shlemon:

That's right. It's wrong to kill an innocent human being even when that human being is yourself.

 

Greg Koukl:

Right.

 

Alan Shlemon:

If you were to take away the theology of it and even if it was the case that yes, suicide was still a crime, she points out we didn't punish these people in the same way we would punish somebody who killed another person.

 

Greg Koukl:

Mm-hmm (affirmative) or attempted to kill another person.

 

Alan Shlemon:

Or attempted to kill another person, that's right.

 

Greg Koukl:

Yeah.

 

Alan Shlemon:

One of the points she makes, she says, look, people who are suicidal typically aren't a public safety risk. She says anyone who wants to end his own life probably needs support and care, not punishment.

 

 

Then, she says, Abortion could be seen in a similar sense. Women who attempt to take the life of their own child are also in a similar distressing situation as a person who might attempt suicide. Therefore, there's no reason to think that these abortive women pose, she says, "A broader threat to public safety in the same way that a person who attempts suicide does not pose a threat to the public safety." That's one perspective that's being offered.

 

Greg Koukl:

You know, I'd never thought about the suicide angle. This is the first that I heard about it, but it does seem to be at least something to think about, and what this underscores, Alan, I think is that there's a huge divide between two kinds of questions here. One is the moral question about the action. Is the action in question right or wrong? That's one question. The second one is the policy question.  If it is wrong, then what should be done for people who commit the wrong or attempt to commit the wrong. Those are different issues, completely different issues. One might be capable of solving the first without being capable of solving the second. I'm speaking here of the rank and file pro-lifer. I guess, I'm trying to simplify the issue somewhat for the pro-lifer who could say, You know what? I don't know what to do. We'll talk some more about some of the possibilities here, but couldn't a person just simply say, You know what? I don't know how the law ought to deal with people who attempt abortion or have abortion, whether it's the mother, whether it's the doctor. I don't know about that. We can't ever make that kind of decision about the policy concern unless we're clear on the moral concern. 

 

Alan Shlemon:

That's right.

 

Greg Koukl:

Ambiguity in the policy concern doesn't necessarily mean there's ambiguity in the moral concern. It’s is within our capability to address the moral question even if we're not specialists in the area of law.

 

Alan Shlemon:

That's right. Strategically speaking, that's an important point for, like you said, every day people who are pro-life. They're pressed with this question and they feel like if they can't answer this legal question as to what punishment should be given then therefore their entire pro-life view is somehow destroyed or undermined. Of course, it's not the case.

 

Greg Koukl:

Even if the charge were leveled at us – and I'm thankful to Scott Klusendorf for this observation – because even if the charge could be leveled at us accurately that we're inconsistent, what Scott says is, "All right. What does that prove about abortion?" It proves nothing about abortion. It just says something about us.

 

Alan Shlemon:

That's right.

 

Greg Koukl:

That we're inconsistent. Maybe, we ought to be viciously consistent and punish the woman, maybe, but we're not willing to do that. It certainly doesn't follow that if we are being inconsistent in our view, that our view is false.

 

Alan Shlemon:

That's right. The pro-life case stands or falls on the merits of its own case.

 

 

Whether there's a scientific defense that you can make for the full humanity of the unborn and that abortion takes the life of an innocent human being, the unborn, whether that's true or not has nothing to do with our consistency on this position or whether we come across as callous, harsh, mean, cruel, or anything.

 

Greg Koukl:

If it's wrong to take a life of an innocent human being and abortion does that, then abortion is wrong. If there's no relevant moral difference between an innocent human being and an innocent human person – and this is where the SLED Test comes in – then the moral logic remains intact. Nothing anybody can say or argue even successfully about our consistency or commitment to our view has any bearing on that argument. It's a really important takeaway for pro-lifers. Let's focus on that which we know because before any policy issue can be decided, there has to be a moral assessment done first.

 

Alan Shlemon:

Right.

 

Greg Koukl:

Let's figure out if whatever is in question is in fact immoral and then, given that it is immoral, what action do we take, what public policy needs to be in place, and what punishments if any need to be in place in light of that. Even though we can separate those two and encourage pro-lifers not to worry about the second because it takes a set of law-making skills we don't know all have.  But we can still make the case against abortion. Then, let the lawmakers who are skilled at that kind of thing sort out the appropriate consequences.

 

I think this illustration you give with suicide is helpful in this regard that there really are a number of factors to weigh with regards to punishment either of a woman who has an abortion or the doctor who provides it. Do you think that it makes more sense to bring legal action against the doctor rather than the woman? Is there a difference between those two participants if abortion were to be considered illegal?

 

Alan Shlemon:

Yeah, I would think so.  Maybe there are exceptions, but I think in most cases, the abortion provider would definitely need to be held accountable in a more severe way. I don’t know if it’s appropriate to punish a woman who gets an illegal abortion, but I do know that the physician performing an abortion should be punished more severely. Certainly, I think the physician definitely is the one who would be the most culpable because they're more aware of what's going on. They're aware of what they're doing. They would know what the law says about their particular practice or the service that they're providing.  They know all the medical details about the unborn they’re killing.

 

Greg Koukl:

This kind of discussion can only be had if it is clear that abortion takes the life of an innocent human being.  If abortion were to be made illegal, it’ll be because there’s a broad consensus in our society that abortion takes the life of an innocent human being and shouldn’t be done.  Once we have that kind of moral clarity in our society, then it’ll be clearer to discuss what the appropriate punishments are.

 

Alan Shlemon:

Right.

 

Greg Koukl:

It's the same kind of discussion we would have about infanticide, which is largely not in question now. That's homicide. It should be actionable. If a mother and a doctor together conspired to kill the baby then they would both be held liable in appropriate ways as the law is construed right now. The only way to discuss the case of abortion meaningfully is if we've already come to a consensus in our culture, that this is a serious wrong. Then, the question is, how do you prevent it from happening? It seems to me that in the case of the doctor, if there are no providers, there are not going to be abortions. Lets just face it.  We only need to favor punishments that are sufficient to stop or discourage the illegal act.  Punishing the doctors will be sufficient to do that. 

 

Alan Shlemon:

Well, doctors could still provide abortions illegally.

 

Greg Koukl:

Right.  But abortion would be vastly curtailed.  Passing laws and punishing behavior doesn’t stop all of those acts, whatever the law is, but it vastly reduces it.  And punishing doctors is enough to do that in the case of abortion.

 

Alan Shlemon:

This was the case even before Roe v. Wade.

 

Greg Koukl:

The point I'm making though is that doctors provide abortions, and if doctors were not providing abortions, there would be drastically fewer abortions. Illegalizing abortion conjures up a picture of women laying in an alley between two dumpsters and somebody using a coat hanger to do the job.  But this isn't what happened even before Roe v. Wade. It was by and large doctors that used their facilities to do illegal abortions before Roe v. Wade, but they were medically responsible abortions.

 

Alan Shlemon:

Right, right. This is even according to Planned Parenthood's own medical director Mary Calderone.  She was the medical director in the 1950s and said prior to Roe v. Wade, prior to the legalization of abortion, that illegal abortion, for the most part, was a safe procedure and that they were done by physicians who are in good standing with their communities.

 

Greg Koukl:

This back alley abortion scare is largely red herring.

 

Alan Shlemon:

Right. I'm sure it happened at some point.

 

Greg Koukl:

Right, right.

 

Alan Shlemon:

Obviously, to the degree to which people try to scare others into thinking, "Man, if we illegalize abortion now, that's what's going to happen. We'll send all the women into back alleys."

 

Greg Koukl:

Right.

 

Alan Shlemon:

Chances are, no. What's going to happen is women will still receive abortions from physicians who will be willing to do them illegally.

 

Greg Koukl:

Now, with that in place then, if the penalty was severe for the physicians, then it discourages them from performing abortions because of the risk of punishment.

 

Alan Shlemon:

Yeah, that's true.

 

Greg Koukl:

If we want to stop abortion because abortion is the taking of an innocent human life without justification, then the best way to do it is to go to the source. It's like almost ... It reminds me kind of the drug users.

 

Alan Shlemon:

Right.

 

Greg Koukl:

You have drug users and pushers. As far as I could tell, most of the law enforcement effort is not on users.

 

Alan Shlemon:

Right.

 

Greg Koukl:

Small change, they're not going to fuss with that. The pushers are are the ones who are more responsible for the drug trade, so you cut it off at the source.

 

Alan Shlemon:

Right.

 

Greg Koukl:

It’s most effective to focus your jurisprudence on the source. Plus in the case of abortion, women are often motivated by emotion and taken advantage of, not given all the information to make a fully-informed decision.

 

Alan Shlemon:

Right. Notice with the example that you just gave with drug pushers and drug users, we would say that taking drugs is wrong. It's a moral wrong. Yet, we would not be inconsistent in our view if we focus on laws that punish drug pushers. We recognize drug users are doing something wrong, but we also recognize that it's the drug pushers who are creating the problem. When we say we should punish the drug pushers, we are not being inconsistent in our position regarding drug use.

 

Greg Koukl:

That's a great observation. I think, and understandably, there's a bit of a tendency sometimes to think of drug users as victims of sorts because they have a habit that, maybe they exercised some choice that got them into it, but now they can't control themselves and so compassion is an appropriate response where it ought to measure or influence the way we deal with them legally. However, pushers are a whole different thing. We don't have compassion on the pushers because they're not in a difficult, emotional situation. They're exploiting people's lives for money. Without the pushers, you're not going to have the drugs by and large; without the doctors who are exploiting women’s difficult circumstances for money, you probably aren't going to have abortion. Again, just experimenting with this way of approaching this, it seems like the judicial emphasis should be on the provider, not on the woman who arguably is being victimized by her circumstances and by her feelings at the same time.

 

 

The key thing for us, and this is kind of where we're landing right now, we're not taking a position on the legal policy questions. At Stand to Reason we are not equipped to deal with all the vicissitudes that relate to the appropriate punishment for a particular crime. That takes a different set of skills. Those are legal people. Those are lawmakers. They know how this works.

 

 

This is another thing to keep in mind. We already have fetal homicide laws in place including in the great state of California, right here. There was a time when abortion was illegal forty-three years ago, and presumably, and I don't know what the details were then legally, but presumably, since it was illegal, there were punishments that were in place. We aren't starting from ground zero here, are we? We have legal precedents from when abortion was illegal. Point being, on the one hand, this is a complex legal question how you prosecute wrongdoing, and we have resources in place so those people who are good at that can figure out the details. We have fetal homicide laws as a precedent. We have passed laws against abortion in the past. We have suicide laws. We have drug laws. Don't go after the user, go after the pusher. There's a lot of thinking that could be done to come up with a fair and just policy of punishment. But we don’t have to answer that question now because that's the second step after the first step has been solved.

 

Alan Shlemon:

That's right.

 

Greg Koukl:

The question that confronts us now is, is it wrong to take a life of an innocent human being and does abortion do that? We can answer both those questions. That’s the issue to stay focused on when confronted with this dilemma. Don't take the bait. Just focus on the question that matters now, and that is the moral question. Once we get that resolved and that's clear, then we could take the second step with a specialist in the field to decide how to proceed with regards to the law. Alan, thank you so much for spending some time with us.

 

Alan Shlemon:

Oh, yeah. I enjoyed it. Thanks, Greg.

 

Greg Koukl:

Yeah, it's always great to have Al with us.

 

 

Greg Koukl

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