[This article was co-authored by Robert P. George and Ramesh Ponnuru.]
Over the last few months, certain intellectuals on both sides of the debate over abortion have publicly expressed newfound doubts about their side’s positions and tactics. Notable defenders of the abortion license, such as Naomi Wolf, have conceded that abortion is no ordinary surgical procedure but is the deliberate taking of a human life (a concession that arguably makes their continued defense of that license more, rather than less, ominous in its implications).
On the other side, some of those who have long understood the literally homicidal nature of abortion are raising questions about the advisability and even the legitimacy of seeking its legal prohibition. That unavoidably divisive effort, they believe, hinders the formation of a broader coalition that would seek to lower the abortion rate by changing the culture. The pro-life movement would do more, they argue, to reduce the number of abortions by stressing the need for teen abstinence, easier adoption laws, and crisis pregnancy centers than by continuing to push (ineffectually, so far) for a general prohibition of abortion. And reducing the number of abortions, they reason, is after all the pro-life goal. Legal restrictions are merely a means toward that end.
Some of those making this argument do, to be sure, advocate legal restrictions on the most widely reviled abortions, especially those taking place in the third trimester. Most on the pro-life side—ourselves included—agree that these restrictions should be the immediate objectives, not least because the effort to enact them would educate the public about the radicalism of the current abortion regime and establish principles that, by logical implication, demand a general prohibition of abortion. But we also believe that such a prohibition should remain the ultimate goal and that the arguments against it undermine the case for even modest restrictions.
Anti-abortion laws are not merely means to the end of reducing the number of abortions. That is a primary goal, of course, but not the only one. Legal recognition of the inherent dignity of unborn human life is an important goal in its own right. Even if nobody chose to exercise the supposed right to abortion, the fact that human life could be unjustly taken with legal impunity would remain a blot on the nation’s conscience; law would still have to be brought into conformity with right. No just society can declare that some human beings do not deserve the protection of the law. Consider the analogous case of slavery: had the federal government resolved to purchase the freedom of slaves, rather than ban slavery, it could hardly be said to have thereby guaranteed the equal protection of the laws.
Another argument against prohibition—one that rejects it as illegitimate, and not merely inadvisable—has been advanced by William Bennett. He asserts that those who support the Human Life Amendment must logically support prosecuting women who procure abortions and doctors who perform them as first-degree murderers, the implication presumably being that such draconian policies are unthinkable. This argument has long been a staple of pro-choice polemics. Ronald Dworkin has perfected the technique: explain that the declared premises of the pro-life position would logically entail some unacceptable conclusion; note that pro-lifers do not in fact support this conclusion; and infer triumphantly that they do not believe what they claim to believe. At this point the pro-choicer can score pro-lifers for hypocrisy, divine “real” motivations for their position that reflect badly on them, refute their “real” premises (which always turns out to be easier than refuting their stated premises), or combine all three.
It is, however, a curious argument for Bennett to make, since he favors expanding legal protection for the unborn. If such efforts were based on the premises that fetuses are living human beings and that direct abortion is therefore unjustified killing, those efforts would be open to the same objection Bennett makes against the Human Life Amendment. Odder still, Bennett does not argue against those premises. If the premises were true and they entailed the conclusion he believes they do, we would just have to swallow hard and work to apply first-degree murder charges in abortion cases.
Yet the conclusion, that abortionists and their clients should receive the penalties meted out to first-degree murderers, does not logically follow from the premise that abortion is unjustified killing. Nor were such penalties historically included in American anti-abortion laws based on that premise.
One might wish to have lower penalties for abortion than for first-degree murder for a number of reasons. The existence of profound moral disagreement on the issue does not relieve us of the obligation to defend a basic human right; but it does suggest that the punishment for violations of that right should be no harsher than required to deter them. In addition, pro-life legislators have to take seriously the law’s function as a teaching instrument, particularly in a legalistic culture. That function is one reason anti-abortion laws are necessary. But the law imposed on our nation by judicial fiat in Roe v. Wade has, in effect, taught people for almost a quarter century either that they have a right to take human life or that abortion is not the taking of human life. In rectifying this wrong, the law should avoid harshly punishing those who have learned this false lesson all too well. Eventually it may be necessary and proper to stiffen penalties against abortionists; but it is legitimate to take into account that the moral and intellectual weaknesses that make people willing to consider or perform abortions are themselves in part a consequence of our laws and institutions.
Abortionists could be considered less culpable or malicious than first-degree murderers: concern for the pregnant women’s dire circumstances or a sincere but misguided view of the status of unborn human beings induce some physicians to perform abortions. Furthermore, the punishment could be scaled to fit the social consequences of the crime: ordinary murder typically causes more pain among the family and friends of the victims than does abortion; the risk of murder decreases the ability of people to participate in and move through society without fear; and if ordinary murder were not severely punished, people’s efforts to protect themselves could end up endangering others.
And there are still other considerations. Lower penalties could increase the effectiveness of anti-abortion laws by making juries more likely to convict. Women seeking abortions could be (and historically often were) exempted from penalties altogether, due both to mitigating circumstances—a great many women are really secondary victims of the abortion industry—and to the need to get testimony to help convict the abortionist.
The only conclusion that does logically follow from pro-life premises is that governments have a duty generally to prohibit abortion and to enforce that prohibition to the best of their ability. Prudential judgments determine how that should be done. Jail terms for performing illegal abortions cannot be rejected in principle. But the penalty could be as mild as a fine. It could well be that the mere revocation of medical licenses would be sufficient to deter abortionists, particularly if backed up by laws that would impose heavy fines and even imprisonment for people who perform abortions without medical licenses.
It is not the prohibitionists but their critics who face a logical dilemma. If abortion does not warrant prohibition by the state, it can only be because the unborn are not living human beings with a right not to be killed. And if they are not, then it is difficult to see why public policy should be concerned to deter abortion at all. It is, after all, the status of the fetus as a distinct, unique human being that leads even pro-choice writers such as Naomi Wolf to acknowledge that abortion—unlike, say, appendectomy—raises a serious moral issue.
The pro-lifers whose views we have been criticizing here should be commended for highlighting the importance of doing what can be done to create a culture friendly to unborn life. But culture and law do not exist in two separate, hermetically sealed containers, as some seem to think. As Marvin Olasky has observed, cultural transformation and legal reform are mutually reinforcing, not mutually exclusive. The proposition that pro-life supporters should try to change the culture and not the law is true in what it affirms and false in what it denies. The truth is that legal reform is required as a matter of both political justice and cultural transformation. The pro-life movement cannot possibly be strengthened by abandoning its core belief about the status of unborn human life.