Written by: Rajiv Shah, PhD Candidate, Faculty of Law, University of Cambridge

Donald Trump suggested that women who have abortions should face punishment. For that he was criticised by both the pro-choice side and the pro-life side. The latter claimed that their view is that women should not face punishment for having abortions but that only providers should. This raises the interesting question of whether the pro-life position is coherent. It would seem that it is not. If the foetus has the right to life then having an abortion is like murder and so those who abort should be treated as such. This post argues that the pro-lifer can coherently reject this implication whilst still holding that the foetus has the right to life. Since it considers the responses a pro-lifer could make this post will assume for the sake of argument that the foetus does have a right to life.

Abortion is not like murder

The pro-lifer could accept Thomson’s analysis that abortion is more like letting die than it is killing,[1] whilst also rejecting her view that there is no duty on the part of woman to support the foetus.[2] So, on that view, abortion would be more like child abandonment. Child abandonment is typically punished but the standard case involves two elements: (a) not supporting the child and (b) preventing others from giving support to the child (e.g. by failing to give the child to orphanage). In the case of a pregnancy there are no other people who could provide the support the child needs. So the wrong done in having an abortion is only (a) (since we assume there is a duty to support the child), this makes it less bad than child abandonment and murder.

Lower culpability – excuses and justification

Punishment requires consideration not just of the objective wrongness of the act but also of the culpability of the agent. An agent might benefit from mitigating circumstances that reduce or even eliminate her culpability. Those circumstances are personal to the agent and do not affect their accomplices. For example, if a women suffering from postnatal depression kills her child she is liable for a manslaughter conviction rather than a murder one;[3] her accomplices, however, would be convicted of murder. Even though the conviction for infanticide is one of manslaughter the practice of the English courts has been to never give a custodial sentence.[4] Quite clearly, this does not mean that English law treats infants as less worthy of protection than adults. Rather, it is a recognition of the special context in which infanticide occurs.

The circumstances women who have abortions find themselves in (particularly if they have illegal abortions) are such that they might perceive abortion to be an unfortunate necessity; this is quite different from the circumstances of a typical murder. Similarly, the reasons why women have abortions appear altruistic. For example, over 70% of women who have abortions in the US do so because they would be unable to care for the child or because they believe that doing so would interfere with their obligations towards their other children. The pro-lifer would say that the end does not justify the mean. This is true, but that does not change the fact that it is miles apart from a typical murder case. However, those circumstances and reasons are generally, though not always, personal to the woman. Hence, an abortion provider would not be able to rely on them for mitigation. For those reasons the pro-lifer could explain why women should not in general be punished for having abortions but that providers should. Indeed, this seems to have been the position in the US prior to Roe v Wade.

Punishment as a means not as an end

If the pro-lifer sees the goals of punishment as deterrence and incapacitation, rather than retribution, then there might be little point in punishing women. Taking out an abortion provider will prevent many more abortions than putting women in jail. Similarly, given the circumstances in which women would have abortions it seems highly unlikely that the threat of punishment would act as much of a deterrent. For those reasons, the pro-lifer could say that there would be no point in punishing women who have abortions.

Conclusion

It seems that the pro-lifer is able to avoid the charge of inconsistency. However, it should be born in mind that the arguments used to rebut the charge are contingent and will not necessarily hold. Firstly, whilst medical abortions can plausibly be said to be letting die the same cannot be said of certain methods of surgical abortions.[5] Secondly, whilst in a typical instance it can be said that a women who has an abortion has her culpability greatly reduced this will not necessarily hold in every case. Thirdly, in some instances it might be the case that punishing women would provide a sufficient a deterrent.

So the pro-lifer cannot coherently claim that it will never be the case that women should not be punished. However, the pro-lifer is probably justified in claiming that these circumstances would be so rare that, for the purposes of enacting a general legislative scheme, women should not be punished.

[1] Thomson, Judith Jarvis. “A Defense of Abortion”. Philosophy & Public Affairs 1.1 (1971): 47–66.

[2] For an argument along those lines see McMahan, Jeff. “The Right to Choose an Abortion”. Philosophy & Public Affairs 22.4 (1993): 331–348.

[3] Infanticide Act 1938.

[4] R v Sainsbury (1989) 11 Cr. App. R. (S.) 533. The Court of Appeal pointed out that of the 59 convictions of infanticide between 1979 and 1988 none had lead to a custodial sentence.

[5] Alward Peter. “Thomson, the right to life, and partial birth abortion or two MULES for Sister Sarah”, J Med Ethics 28 (2002):99-101.