Why It’s Justifiable To Not Prosecute Mothers Who Abort Even If It’s Murder

Why It’s Justifiable To Not Prosecute Mothers Who Abort Even If It’s Murder

There is a reason that mainstream pro-life supporters do not advocate prosecuting women, and for better or worse, it is because many do not think women know what they are doing.
Benjamin R. Dierker

It is legally clear that Southern slave owners could not be prosecuted for owning slaves during the height of that peculiar institution. Over time, our laws have changed and the practice of slavery, while timelessly immoral, is now subject to prosecution. But what would happen if we transported a nineteenth-century slave owner to the present? Would you be shocked that we may not be able to convict him, even under today’s enlightened laws?

The balances of our legal system protect the innocent and wrongly accused while serving justice on the wicked, but in between lies a class for whom the scale could tip either way. You may assume that our inability to convict rests on the slave owner’s knowledge of the law; we did transport him out of his own time, after all. But ignorance of the law is no defense, and not knowing slavery is now illegal would not spare him from conviction. So what keeps us from convicting and chaining him up?

Why Someone’s Mental State Is Important

A mistake of fact could serve as a viable defense if his ignorance negates the proper mental state required by law. What does mental state have to do with it, you ask. The criminal justice system has several motivations, but it makes little sense to attempt to deter, restrain, or punish someone with a genuine mental innocence of the crime. Because we generally want to punish people for choosing to do wrong, the law considers the person’s mental state during the crime. The law labels this mens rea, or guilty mind. Stated simply, a slave owner does not think he is violating the law because he does not think slaves are morally or legally persons.

This will shock and offend the decent folk out there. Who cares what the slave owner thinks, when we can all see plainly that the slaves are moral beings with personhood? There are a few instances where this outrage is both morally and legally warranted. If the offense is strict liability, it does not matter what the wrongdoer thought he was doing, because just for having done the wrong act, the accused will be convicted.

Outside of strict liability, there are different levels of mens rea. The most defendant-friendly is “intent,” which requires that one intends the wrong or illegal action. The prosecution has the burden to prove the high bar that the defendant intended to commit the act.[1]

Under 18 U.S.C. 1584, which enforces the Thirteenth Amendment prohibition on slavery, “whoever knowingly and willfully” withholds the freedom of a “person” by involuntary servitude shall face up to 20 years imprisonment. The prosecution must prove the high-burden conjunctive standard that the slave owner both knowingly and willfully enslaved a person. Our ignorant slave owner, not knowing or intending, could go unconvicted. To him, the slaves are not people with moral status; they are so inferior that they do not comprise “persons” under the law. In his mind, he is enslaving an animal, a Neanderthal, or sentient property—living but not moral beings.

The morally outraged must find this preposterous; slaves were obviously morally valued people. Well, slaves were certainly humans, but the indoctrination and propaganda of the day could reasonably convince an uneducated odious despot that they were not persons. Human DNA and inherent potential to some does not a person with moral status make. Imagine for a moment the uneducated person who was told from childhood—his most impressionable years—that slaves were inferior and amoral beings. Not only this, but the person’s parents, legislators, heroes, and role models insisted that slaves were merely property and not real persons.

So It Would Be Plausible to Not Convict the Guilty

In the courtroom, the judge and jury would have to make a credibility judgment on the slaveholder’s testimony that slaves are not persons to determine if he did not know he was breaking the law. If temporary insanity may allow a man to walk away from killing a person he thought was a threatening demon, the flawed but sincere belief that the slaveholder was only using property to work his plantation could potentially preserve his freedom.

Today’s jury would certainly know slavery is immoral and want to convict, but their task is to determine the slave owner’s mental state and the outcome under the law, not satisfy their moral impulses. They could find that he did not have genuine ignorance, like many in the plantation era who knew exactly what they were doing, and to whom. If our slaveholder did, however, have a sincere ignorance, the proper legal outcome is not to convict. Perhaps this whole argument seems like a naive affront to justice.

Indeed, the scenario here seems unthinkable, and yet our society is facing an equally disturbing injustice. Today, people still accept that human DNA and potential can be negated by law. Despite the scientific support, people still reject the humanity of a whole class of humans. The abortion odium has been rightly compared to slavery a number of times, with similarities including dehumanizing life and rejecting personhood through junk science and propaganda. As Dennis Prager explains, the moral arguments clearly reveal the inconsistency of the abortion-justifying agenda.

Even the Journal of Medical Ethics has joined this pernicious farce, pushing the envelope even as far or further than slavery with: “After-birth abortion: why should the baby live?” The sordid abstract reads:

Abortion is largely accepted even for reasons that do not have anything to do with the fetus’ health. By showing that (1) both fetuses and newborns do not have the same moral status as actual persons, (2) the fact that both are potential persons is morally irrelevant and (3) adoption is not always in the best interest of actual people, the authors argue that what we call ‘after-birth abortion’ (killing a newborn) should be permissible in all the cases where abortion is, including cases where the newborn is not disabled.

Forgive Them, They Know Not What They Do

There is a reason mainstream pro-life supporters do not advocate prosecuting women, and for better or worse, it is because many do not think women know what they are doing. The tiresome rhetoric of a “bundle of cells” reveals that either through willful blindness or innocent ignorance, women claim they are not ending a human life, or they draw arbitrary lines between moral status and “actual persons.”

This position was recently articulated by Daily Wire Editor Ben Shapiro. Of course, more justice-oriented commentators forcefully reject the Shapiro model. The “actual person” distinction was laughable when applied to slavery, but how does it fare here?

Without the benefit of hindsight, much of our society still views abortion as justifiable. Restrained commentators merely comment that women should not be prosecuted for abortion despite its clear immorality. Applied to slavery, we cannot fathom today holding such a restrained view—of course they must be prosecuted! It is patently outrageous to believe that a slave owner could deny the personhood or moral status of a slave, so why does our society look the other way for the most vulnerable among us who literally cannot speak for themselves?

Slavery dehumanized people, and abortion terminates them. In 150 years, the political and rhetorical landscape will be different, but the science is clear now. How will people look back on this era?

[1] Other mens rea standards lower this burden and include “knowing,” “recklessness,” and “negligence.” These varying levels of mens rea allow such distinctions as first-degree murder, second-degree murder, reckless homicide, and involuntary manslaughter so that the punishment can be matched with the mental state of the accused. Surely a premeditated murder should be treated differently than an unintentional vehicular manslaughter.

Benjamin thinks, writes, and talks about economics, law, and public policy. His articles are intended to present issues in a new light to readers and do not necessarily reflect personal opinion. No articles represent the views of past or present employers.

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