If abortion is made a criminal act under the law, should it be declared murder? Should the penalties be the same as for other cases of murder? How should they apply to the doctor? How should they apply to the woman?
Abortion is the deliberate killing of an innocent human being. It is a case of murder. It must be called by its proper name, both in the moral and legal order. Anything less is an injustice to the child. The seriousness of the charge of murder is a reflection of the seriousness with which we take the reality of the victim of the killing. Preborn babies are not lesser persons - they are our equals. Killing a child before birth is as much murder as killing that child, or anyone else, after birth. The law must reflect and express this. It must call abortion by its proper term: murder.
A doctor deliberately kills a sick five-year old child. A second doctor kills a newborn baby. A third doctor deliberately kills a preborn baby. Surely the first doctor commits murder. And the second? Of course. There is no morally relevant difference. And the third? Again it is murder, there is no morally relevant difference. The only difference between the three is that the child is a bit younger and smaller in each succeeding case, and in a different environment in the third case. But the horror of the deed, the gravity of the offense is the same in all three cases. The third has a different name, abortion, and perhaps a different psychological appearance, but it is of the same nature as the other two. Doctors who perform abortions are hired killers, paid professional killers. They should be indicted for first-degree murder just as in all other cases of deliberate, premeditated murder. The penalties for doctors for killing preborn babies should be the same as the penalties for killing born persons. Only in this way do we grant the preborn child the equal treatment he or she deserves.
Does this judgment sound harsh? If so, is it because we do not seriously consider the child to be a person? If we do, does it still seem harsh? If we recognize that the doctor is deliberately killing a small child who cannot defend herself, who is ruthlessly crushed because the doctor has the power to destroy her, how can we say that the doctor's deed is anything but murder?
Recall the horror of abortion, how the child is cut to pieces, dismembered by suction, or subjected to being burned all over her body for one to two hours, and then ask: Where is the harshness? In the judgment on the doctor, or in what the doctor does to the child?
It goes without saying that any doctor who kills a preborn child should immediately be suspended from the medical community and barred from any further medical practice. He has violated his professional trust and obligation in the most fundamental way. Medicine exists to heal and save people, not to kill them. A greater contradiction to the spirit and essence of that noble profession can hardly be imagined.
A doctor who performs an abortion may see it as a service for the woman, an act on her behalf. This has to do with the motive of the agent; it does not affect the nature of the action. That action is still murder, and should be declared so under the law. A doctor who kills a handicapped newborn baby may also do it as a service to the parents, perhaps out of compassion. Whatever the status of his motive, his deed is clearly murder, the deliberate killing of a helpless infant. Abortion is no different.
Let us turn to the question of penalties for women. On the one hand, as I have shown, women are in various ways the second victims. They are often pressured; they turn to abortion because they are not supported and see no alternative. Far from being a genuine choice, abortion is often an act of desperation. Women are often devastated in many ways, by feelings of guilt, regret, depression, and by physical damage. Abortion is a terrible assault on the woman, psychologically and physically. One might easily say they have suffered enough. Moreover, women are often unaware of the full reality of the child, and how horrible abortion is for the child. All these are surely mitigating factors. On the other hand, we must not retreat from the stand that abortion is murder, and, therefore, that the woman in choosing abortion participates in murder. Women themselves sometimes say, "I have murdered my baby," or something similar.
"But is it not an extreme and harsh view that would treat women who have abortions as murderers?" This is sometimes asked by defenders of abortion as an objection to making abortion illegal: "It would treat women as murderers." It is assumed that any sensible person will immediately see that this is absurd.
But is it? If we recall what a horrible act abortion is, as we have repeatedly stressed here, any apparent absurdity will quickly vanish. Abortion is murder, and therefore all those who are involved in it are involved in murder. It is not my judgment that makes the killing of an innocent human being murder, but the facts of the case itself. The alleged absurdity here comes from failing to see the reality of the child in the womb and the horror of deliberately killing her. Given this horror, how can abortion be anything but murder?
Part of this question/objection stems from the idea that we should have pity on the woman. Indeed we should. But to call such an action murder is not to contradict pity. If a desperate person kills an innocent person, we can have great pity on him; we do not judge him harshly, and yet we say his deed was murder. Pity is a response to the person; the question of murder pertains to the nature of the action. The action, if it is the deliberate killing of an innocent person, does not cease to be murder because we have pity on the person who committed it, or the person involved in it.
We should pity the woman who has an abortion. And the child! We should have the same concern for the child that we naturally have for the woman. If what is done to the child in abortion were done to the woman, we would be outraged. We would surely call it murder, regardless of who did it, or why that person did it. We must be equally outraged at what is actually done to the child, and we must call it murder as well.
At first the two aspects - calling abortion murder, recognizing that women who choose abortion are involved in murder; and having pity on women as second victims of abortion - may seem contradictory or opposed. I think that on a deeper level they unite. The law must recognize abortion in all its seriousness and apply penalties that reflect this. This is not only in response to the child as the primary victim, to protect him, but also in response to the woman, the second victim, to protect her. Paradoxical as it may seem, we can have pity on women by recognizing abortion as murder, with appropriate penalties. It is a way of conveying the message that abortion is a terrible thing, from which women must be protected. "Do not commit murder" is a powerful warning.
In all of this I have not spelled out what the penalties for abortion should be, for the doctor and for the woman. That is a topic beyond the scope of this book, belonging to other subjects, the ethics of punishment and criminology. I have argued for two main points: equal treatment for the preborn child, that killing her be treated as murder, just like the killing of a born child, or any other person: and protection for the woman. Whatever penalties are imposed must reflect this, as well as take into account any relevant mitigating factors, just as in all other cases of murder. There are, however, several points that should be made in regard to the question just raised. First, the severity of the penalty should reflect the seriousness of the crime. The gravity of the penalty is a measure of the seriousness with which we take the offense. If we value human life, we must impose a corresponding penalty on those who would deliberately destroy it.
Second, should we pity the criminal? A tension between pity and justice runs through the whole of the criminal justice system. The rapist who evokes our wrath may also evoke our pity if we look into his rniserably unhappy childhood, and if we see him harshly punished. This tension is a very general one, not confined to any single type of crime. And it is not, I think, easily resolved. The pity/justice tension that we see in the case of abortion, pity for the woman, justice in response to the murder of the child, is part of this general tension. It should be seen as such, and not as something special. And neither element should completely overshadow the other, as when pity for the woman leads to a denial that the abortion she requests is a case of murder.
Third, consistent with justice, the penalty for a crime should be severe enough to provide maximum deterrence against committing it. The principles here are the same as for the murder of born persons. Murder of the preborn must be punished in such a way as to afford the potential victims the maximum protection of the deterrent effect of law, consistent with justice. This is the kind of protection we owe the woman; and her preborn child.
Finally, as in all cases of killing, the severity of the penalty should also reflect all the relevant factors of the individual case. All the elements that make women the second victims of abortion enter here as mitigating factors. In some cases, similar considerations may also apply to the doctor. As a general rule, however, it seems to me that the penalties should be more severe for the doctor than for the woman. As noted, the doctor is a hired killer, and should be treated as such.
The question of penalties for women is an agonizing one. In trying to resolve it, I suggest we keep in mind the four points immediately above, paying special attention to the second: pity for the woman, but also a concern for justice.
posted by: gesn (reply)
post date: 01.28.04 (1:34 pm)
Should probably kill the father while you're at it ... why should they get off scott free?
If abortion is made a criminal act under the law, should it be declared murder? Should the penalties be the same as for other cases of murder? How should they apply to the doctor? How should they apply to the woman?