Abortion advocates routinely accuse pro-lifers of hating women; that we feign concern for the unborn to justify our desire to control women. One go-to argument used by abortion advocates as evidence of their ridiculous assertion is that we want to outlaw abortion so we can throw women in jail. Of course, this is patently false. Sadly, in addition to abortion advocates, recently there have been a handful of pro-lifers who are now promoting this misguided notion that we should prosecute women who have illegal abortions.
Previously, we explored this issue from a legal perspective; now we will refute this argument by examining justice as understood through Natural Law as mirrored in our legal system.
Robbing a bank is a moral evil. No reasonable person would argue that point. However, a deeper question must be asked: how morally culpable is the individual who robbed the bank for his act? To determine just how morally responsible an actor is in a given situation Natural Law requires ethicists[i] to probe and answer questions regarding the intention, object, and circumstances of the action. For example, did the actor commit the robbery only for the money, or did he do so because his wife was being held hostage at gunpoint?
Prosecutors evaluate crimes they may potentially prosecute in a similar way. Certainly, if it comes to light that a man robbed a bank because his wife was being held at gunpoint and was told to commit the robbery or she would be killed he would likely not be prosecuted. It is clear that the man was not able to truly practice his free agency, he was coerced, under duress, or rather forced, into doing it. Reasonable people understand this was not a freely chosen decision on his part. Ethicists know if one or more moral impediments exist within the actor, it can reduce or completely abrogate moral culpability. This is an example of where our common law principles incorporated traditional ethics.
Our pre-Roe legal system recognized Natural Law principles and did not prosecute women for having illegal abortions. Applying the concept of moral impediments, our laws recognized women were just as much victims of illegal abortion as their unborn children. It only makes sense that should abortion become illegal again, we would apply justice through the principles of moral impediments, also known in legal terms as a justification defense.
Unfortunately, presently there are two states pursuing legislation that would not only outlaw abortion but could prosecute post-abortive women. These bills are supported by an organization that does not support an incremental approach to outlawing abortion, but rather a complete abolition or nothing at all. This position has also found support from a conservative political writer[ii] who has advocated discarding the defense of duress, or “coercion” as she calls it, for women who have illegal abortions.
Recently, this position was excellently refuted on legal grounds by Ana Brennan[iii] who argued this position was untenable for a number of legal reasons. To summarize Ms. Brennan’s position, implementing this position would radically change the justice system as it is known today and has been practiced and developed over the centuries. How radial would this proposition change our justice system? This particular conservative writer further elucidates her policy position, “While situations like this could be mitigating factors in sentencing, it is a poor argument for not prosecuting women at all.”[iv] This seemingly innocuous sentence carries quite a punch when it comes to the justice system as it is practiced in the US.
Before we continue, it is important to clarify and understand what the word “mitigate” means. Legally, a defense and a mitigating factor are not the same thing. For example, the defense of self-defense can mitigate (vernacular usage as a verb) culpability for murder. Defenses speak to mental state and culpability, which must be proven during a trial by the prosecution as an element of a crime. Legally speaking, duress (coercion) is a defense, not a mitigating factor. Mitigating factors (legal usage as an adjective) are applied during sentencing to justify handing down a more lenient sentence, not change the verdict or speak to guilt. Some mitigating factors the court may consider include whether there is a history of abuse, past criminal record, or how cooperative the defendant was with the police, to name a few. Mitigating factors have nothing to do with the guilt of the defendant. If someone is convicted of first-degree murder a court might sentence the defendant to life in prison as opposed to death. The defendant is still guilty of first-degree murder, but given mitigating factors the death penalty was not warranted.
Denying post-abortive women the defense of duress (coercion) singles out these women to be stripped of the ability to mount a defense. This is similar to the King’s Court of old. As Ms. Brennan states, “To argue that a woman who’s had an abortion cannot present any factors that may exculpate culpability is to argue for the most draconian of legal systems.”[v]
Herein lays the moral problem: the simple fact is if women are prosecuted for abortion and defenses are not considered prior to or during trial a new legal principle would be created; one that wipes out centuries of established ethical principles that have been established within the practice of law. This is morally problematic for a couple of reasons:
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1) Justice demands civil and common law mirror Natural Law and,
2) When an unjust law exists and it cannot be immediately overturned incremental laws are to limit the harms, not to create new evils.
It is prudent at this point to look at what St. John Paul II, himself a proponent of Natural Law, had to say about the principle of incrementalism as found in Evangelium Vitae.
In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not, in fact, represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.[vi]
How does this statement apply to the issue of prosecuting women for illegal abortions? There is a level of genius within St. John Paul II that is not immediately caught when reading this passage at first glance. One must understand that the principle of incrementalism that is being espoused here is about restoring justice in areas where an evil law has taken effect. The US Catholic Bishops certainly recognize this genius when they stated the following, “Sometimes morally flawed laws already exist. In this situation, the process of framing legislation to protect life is subject to prudential judgment and ‘the art of the possible.’ At times this process may restore justice only partially or gradually… Such incremental improvements in the law are acceptable as steps toward the full restoration of justice.”[vii] The idea is that new laws that are created to promote justice, not their opposite.
Legislation is to right a wrong, not create a new wrong. Again, this is well within the Natural Law tradition as Aquinas stated, “Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.”[viii]
When advocating for a new law, not only does the proposal need to meet a standard of justice, it must also ensure it is not creating an injustice. Unfortunately, this idea to prosecute post-abortive women yet at the same time deny them a defense will create an extreme injustice, specifically turning the legal principle of “innocent until proven guilty” on its head since it is advocating for a system that essentially does not look at impediments that can impact a moral agent, at least within the realm of abortion jurisprudence.
The idea that post-abortive women, like everyone else, may use a particular defense, does not discount female agency. Both our moral and common law acknowledge the reality of humanity; that is why the legal system, which is based on Natural Law allows defendants to present defenses such as necessity, consent, duress, entrapment, diminished capacity, provocation, insanity, and maturity/age.
Ultimately, the proposition to prosecute post-abortive women and then deny them a defense is a rather limited view of justice when it comes to the Natural Law tradition. The law certainly recognizes that justice exists outside the courtroom as well. For example, suicide, in many states, used to be recognized as a crime. There are cases in which someone who attempted suicide and failed was tried in court.[ix] The simple fact remains, even though many states still recognize suicide as a crime the vast majority of prosecutors will not prosecute. The reason is simple; these are clear cases where a person is suffering from one or more impediments that have impaired their reason.
Most states have decriminalized suicide in recognition of this truth. The mainstream pro-life movement and pre-Roe abortion jurisprudence also recognize that women who are considering an abortion are also facing one or more impediments. In these instances, the virtue of justice is best served not by jail time, but by counseling and healing.
The aim of the law and justice is best served by prosecuting the true offender who has not suffered from severe impediments that impair the ability to reason. Clearly, abortionists do not suffer the impediments women face. Post-abortive women need help precisely because they believe their situation is so dire that they are not able to reason correctly for the time being. Just as we recognize that a suicidal person is calling for and in need of help, so too is the woman considering an abortion. A person can be so burdened with impediments they become a victim of those impediments. Just like the suicidal person is a victim of his impediments, so is the woman. Justice demands that these people receive the treatment they desperately need. Ignoring, or downplaying the impediments women face is to commit an injustice against these women and their unborn children. Justice as understood through Natural Law, and reflected in our legal system, is best served by recognizing the moral impediments that post-abortive women face and provide them with the care they need. It even seems that Jesus, Himself, understood the problems of the post-abortive woman.[x]
Abortion is a moral evil. It should be outlawed. But serious offenses have to be dealt with, with a proper sense of justice. The position that women should not be prosecuted for illegal abortions is based on Natural Law tradition as reflected in our laws. The fact our justice system places so much emphasis on mental state to prove guilt, allows defendants to present defenses and courts to take mitigating factors into consideration, as well as recognizing the prudent application of justice as evidenced by the legal treatment of attempted suicide, illustrates our historical legal modus operandi that is capable of distinguishing justice. To argue otherwise, to not only prosecute women but to deny them a traditional legal defense is to deviate from Natural Law and establish a new legal order based on nothing but whim.
[i] Please see Thomas Aquinas’ Summa Theologica, I-II, Q. 6 and Q. 18.
[ii] Boorman, Georgi, “Yes, It Would Be Just To Punish Women For Aborting Their Babies,” The Federalist, December 4, 2018, http://thefederalist.com/2018/12/04/yes-just-punish-women-aborting-babies/.
[iii] Brennan, Ana, “Love Them Both,” Sebastian’s Point, December 6, 2018.
[iv] Boorman, Georgi, “Yes, It Would Be Just To Punish Women For Aborting Their Babies”, The Federalist, December 4, 2018, http://thefederalist.com/2018/12/04/yes-just-punish-women-aborting-babies/.
[v] Brennan, Ana, “Love Them Both,” Sebastian’s Point, December 6, 2018.
[vi] John Paul II, Evangelium Vitae, no. 73.
[vii] United States Conference of Catholic Bishops, Forming Consciences for a Faithful Citizenship, no. 32.
[viii] Aquinas, Thomas, Summa Theologica, I-II, Q. 95, A. 2
[ix] In fact a very recent case has happened where a Baltimore man was tried for attempted suicide. But even in this case many have argued that the prosecutor used poor discretionary judgment: https://www.baltimoresun.com/news/maryland/crime/bs-md-suicide-criminal-charge-20180222-story.html.
[x] This author also wrote a piece on the account of Jesus and the penitent woman, were the author posits the possibility that Jesus is actually encountering a post-abortive woman. The article may be viewed here: http://truthandcharityforum.org/changing-hearts-and-minds/.
LifeNews Note: Joe Kral, M.A., is the President of the Society of St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture Quarterly.