Why We Shouldn’t Punish Mothers Harshly For Abortion Even Though It Is Murder

Why We Shouldn’t Punish Mothers Harshly For Abortion Even Though It Is Murder

Is there a way to say ‘abortion is murder’ without committing oneself to punishing mothers who abort with the punishments we reserve for murderers? The short answer is yes.
Z.W. Lucow
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In a recent interview with Dave Rubin, David Horowitz described his qualified pro-life position. While he could not call himself pro-choice, he challenged the rhetoric of “abortion is murder.” If abortion is murder, he argued, then every woman who has had an abortion should be in jail for life. Because such a consequence would be extreme, the proposition “abortion is murder” must also be extreme.

This argument is familiar and persuasive. Undoubtedly, a man as honorable and intelligent as Horowitz would not be troubled by such an argument unless it was, at the very least, a powerful piece of rhetoric.

Horowitz is not alone in his hesitation. When a candidate for president, Donald Trump said he would have women convicted for having an abortion. Representatives of the pro-life movement quickly distanced themselves from his position. The question is whether there is a way to say that “abortion is murder” without committing oneself to an unfortunate policy position most would prefer to avoid. The short answer is yes, but that depends upon first clearing up a pernicious equivocation.

There Are Many Different Kinds of Murder

The problem with this pro-choice argument from legal consequences, which I will refer to as the legal argument, is that it conflates two senses of the word “murder.” The first is the moral sense of the word. In this sense, the word means a wrongful killing. The second is the legal sense of the word. This use is defined differently in different jurisdictions.

These legal definitions are highly technical. When a person is brought before the court on murder charges, a prosecutor breaks down the legal definition of the term murder, as defined by the jurisdiction in which he brings the case, into elements. Such technical operations have no counterpart in the moral sense of the word “murder.”

Once we draw a distinction between the legal and moral sense of the word murder, we immediately see how the legal argument is fallacious. When people say “Abortion is murder,” they are using the word in the moral sense; they mean abortion is a wrongful killing. The legal argument, however, depends upon us interpreting the word “murder” in the legal sense. It does not follow from the use of the word murder in the moral sense that if abortion were illegal, we would put abortion into the same legal category as murder.

Legal language is far more robust than moral language. It allows for subtle distinctions not available in moral discourse. In moral language, murder is the catchall term for all wrongful killing. The most closely analogous term in the legal language is culpable homicide. Even here, however, the words are not perfectly analogous. For Jews and Christians, murder encapsulates all wrongful killing because the only consideration in a moral language is right and wrong.

Translating Moral Language into Legal Terms

In law, we are concerned with questions of social order, deterrence, fairness, and proportionality. The legal vocabulary must account for more kinds of considerations, as well as the fallibility of those individuals weighing such considerations. The term “culpable homicide” in the legal vocabulary may or may not denote the same acts as the term “murder” does in the moral vocabulary, but in the legal vocabulary, culpable homicide is the most general term in a taxonomical structure, whereas in the moral language, murder is as general and as specific a term as you find for wrongful killing.

As a result, when a moralist uses the term murder, a legal thinker should interpret that term as sharing a loosely common meaning with the most general analogous term within their own vocabulary.

The moralist would not use such serious language unless he thought abortion was a problem of civilizational concern, a problem only resolvable in law. The moralist uses his language to appeal to legal authority. That does not mean legal thinkers should feel at liberty to disregard the difference between their own and the moralist’s language. Contrarily, legal thinkers should feel a burden to act as a translator.

Because “murder” in the moral vocabulary is most closely analogous to “culpable homicide” in the legal vocabulary, when a person says something is morally equivalent to murder, a legal thinker should understand that person as saying that it ought to be considered a type of culpable homicide.

Because culpable homicide can be parsed in any number of ways, there is no reason that abortion needs to be thought of as murder in the legal sense. Manslaughter might be equal to murder in the moral sense, but in the legal sense, it is a conceptually distinguishable subcategory of culpable homicide. It seems clear to me that if abortion were declared illegal tomorrow, it would need to be an illegal act on its own terms.

What Distinguishes Abortion from Legal Homicide

This argument turns on the presumption that there is a substantive distinction between legal murder and abortion. This distinction be must such that legal murder and abortion can both fit under the moral sense of murder. There must, however, be something about abortion that triggers our intuitions that a woman who seeks an abortion is not criminally culpable in the same way as a person who commits a legal murder.

Positing such a distinction is well within the norms of historical legal reasoning. The distinctions between murder and manslaughter are a largely artificial construct within the common-law tradition that America inherited. There was a time when any culpable homicide would be a capital offense.

Since then, our moral intuitions have changed. We have recognized subtle distinctions between those who intentionally kill with malice aforethought and those who intentionally kill without such malice. To a common-law practitioner, such distinctions would be artificial, but we recognize such distinctions as the reasonable consequence of wrestling with our intuitions.

I propose that the distinction between abortion and legal murder is one of knowledge. Abortion is legally permissible, socially condoned, and culturally promoted. To propose that such facts will not put strange ideas about the nature of an unborn child into reasonable people’s minds is faulty. Tragic as it is to say, in a world where such forces operate on a young woman, her belief that abortion is justifiable is not unreasonable.

To defy the weight of culture takes tremendous work. Even people born into families that honor the value of human life need to arm themselves with every resource they can to fend off novel and false moral visions. Once such people take on the task of committing themselves to truth, there is no guarantee that in their pursuit they will not be led astray by some strange and provocative line of reasoning.

What About If Our Culture Stops Lying to Women?

If this distinction is justifiable, we may be tempted to make punishments more lenient in the short run, but when a culture of life has been created, will there be justification to increase the penalty to something more in line with our current standards for legal murder? The answer, I think, is no.

Abortion is such a discreet act that it becomes hard to conceptualize the unborn child in the same way as the born child.

Although the culture issue is a powerful reason to posit a distinction between legal murder and abortion, it is also indicative of another distinction between the two. Namely, abortion is such a discreet act that it becomes hard to conceptualize the unborn child in the same way as the born child. Undoubtedly, this is the reason that the threat of late-term abortion, a proposition for which there is no intelligible defense, is creeping into the culture.

The pro-abortion argument would not have made it as far as it did unless there was something about the life of an unborn child that made it difficult to view in the same way as that of a born child. To illustrate this point, it is useful to contrast abortion with another cultural institution with which it is often compared. People are quick to link abortion to slavery.

The parallels are obvious. Both institutions are immoral on their face, have cultural support, and were defended for a time as necessary evils until the debate shifted, and they were argued as positive goods. The fundamental difference is that slavery was an institution that had been legal for millennia before moralists took up their duty to fight it; abortion was a crime made legal. The former was supported by the weight of history; the latter was propped up despite history.

Such a transition would not have been possible unless it was fundamentally difficult to conceive of an entirely hidden human being. Unseen crimes are difficult to conceive. Such difficulty in conception is not a reason to condone the crime. It is, however, a reason to think it fair to carve out a legal distinction.

The views expressed in this article are the author's own and do not necessarily represent any institution with which he is affiliated.

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