Sherry F. Colb

Pro-Life Ideology Split in Two: Subtle Distinctions Expose Fundamental Divide

By SHERRY F. COLB


Wednesday, December 9, 2009

The politics of abortion have made the news once again. First, there were stories about the introduction of the Stupak Amendment to the House version of the healthcare bill last month. The Amendment restricts abortions that may be offered through the "public option" and through private insurance plans purchased with government subsidies to only those abortions necessary to save the woman's life and those that terminate pregnancies conceived in rape or incest. Then, there was media coverage of Dr. Leroy Carhart's expanded provision of late-term abortions at his clinic in Nebraska, a response to the anti-abortion murder of Dr. George Tiller in May of this year.

These developments present an opportune moment for reflecting on the U.S. pro-life community's view of abortion. In particular, I will focus, in this column, on that community's preference for condemning and restricting those who support the practice of abortion – by performing the procedure or by financing it – rather than condemning and punishing the women who seek to terminate their pregnancies.

The First of Two Competing Pro-Life Views of Abortion: "Abortion = Murder"

On one approach to abortion, captured by the laws of such countries as El Salvador, Malta, and Nicaragua, abortion is morally no different from any act of murder. This view has two components, the first of which concerns the embryo or fetus ("fetus"). The fetus, on this account, is a person from the moment of conception, with the same right to live as any other person. To kill a fetus through abortion is therefore morally wrong and ought to be condemned and punished by the State as murder.

The second, and more distinctive, component of this approach is that because abortion is no different from other homicides, the pregnant woman who decides to terminate her pregnancy is as culpable as her abortion provider or anyone else who might assist her in procuring that termination. If you hire an assassin to kill your target, you do not avoid responsibility for the murder that follows, despite your not having physically killed your victim. By the same logic, if a pregnant woman goes to a doctor, and the doctor kills her fetus at her request, then the pregnant woman is as guilty as the doctor – on this approach – for procuring the abortion provider's services.

Furthermore, a proper abortion law – according to this moral scheme – does not contain any of the usual exceptions for specified subsets of abortions. Rather, just as one may not commit murder even if (a) the murder would result in saving the killer's life, or (b) the murder would end the life of someone conceived in rape or incest, or (c) the murder would end the life of someone who suffers from a severe congenital abnormality, one cannot kill a fetus under any of these circumstances either.

Another Pro-Life View: "Abortion Sometimes = Murder"

In sharp contrast, the pro-life community's approach in the United States – to the extent that one can generalize about an internally diverse movement within one nation – has generally and conspicuously declined to adopt this first approach to abortion. This community shares the first premise of the "abortion = murder" crowd – namely, that the fetus is a full person, as entitled to live as any other person. The U.S. pro-life movement does not, however, view the pregnant woman who seeks to abort as occupying the same moral space as the abortion provider (or other party) who performs or facilitates the process of termination.

While the U.S. pro-life community seeks to criminalize abortion (to the extent politically possible), in other words, in this community's view, the proper subjects of criminal responsibility include abortion providers but not the pregnant women themselves. A woman who has an abortion, then, would not be vulnerable to criminal penalties for doing so. In addition, the prohibition would carry at least one exception: Abortion would be permissible when necessary to save the pregnant woman's life.

One Interpretation of the Two Competing Views

Critics (including myself) have, on occasion, suggested that there is something inconsistent about maintaining that abortion is – and should be punished as – murder, but, at the same time, refusing to punish the person who initiates and chooses to have that putative murder carried out. The reason for such inconsistency, some have surmised, might be a belief that punishing pregnant women for getting abortions – even if required by philosophical and moral consistency – would be politically unpalatable and therefore not a strategically wise premise for advocacy. On this interpretation, there is really no difference between the two pro-life approaches, beyond a perceived need to "compromise" to achieve ultimate success.

Alternatively, some have proposed, the second pro-life approach may reflect the perception of pregnant women as not entirely rational and informed beings capable of making decisions that trigger criminal responsibility. This alternative reason is condescending to pregnant women and could have the troubling implication that pregnant women should not have the same legal rights to make binding and important decisions as other (competent) adults do. Seen in this way, the exemption from abortion liability for pregnant women might seem comparable to exemptions from criminal responsibility for young children and the insane.

There is, however, a distinct (and more flattering) account of what I am calling the U.S. pro-life community's approach to the law that should govern women who have abortions. On this account, when a woman terminates an unwanted pregnancy through abortion, she acts wrongfully and commits a homicide, but she is nonetheless excused. Her excuse, however, does not stem from a perception of pregnant women as child-like or insane. Indeed, pro-life thinkers who believe that women should be exempt from criminal responsibility for abortions still regard pregnant women as otherwise fully responsible for their actions, a responsibility that extends to, say, a pregnant doctor who performs abortions on other women. Such a doctor would accordingly be bound by the same criminal laws as other providers, within this approach.

The woman's excuse for her own abortion thus stems not from her status as pregnant, but instead from the relationship between her pregnancy and her decision to abort. On this approach, the pregnant woman who chooses an abortion occupies a unique position – the position of a person whose bodily integrity is compromised by another person's (innocent) intrusion.

Invoking Criminal Law Concepts to Ground the Exception: Duress and Self-Defense

Within the second framework, a woman experiencing an unwanted pregnancy – unlike her boyfriend, the doctor who performs her abortion, and the insurance company that finances termination – is understandably desperate. Her own body has become the unintended instrument for keeping another person alive. She plays the dual role of both an individual and a source of life-support to an undesired companion living inside her body. Such a state of affairs significantly mitigates her decision to terminate her status as life support, even though – according to both of the pro-life camps I have described above – she kills another person who has the right to live.

The (innocent) assault that an unwanted pregnancy inflicts on a woman's bodily integrity may accordingly be sufficient to relieve her of criminal responsibility for terminating that pregnancy. The pregnant woman is, in other words, experiencing a kind of "duress" – in criminal law terms – that does not justify, but does excuse, the decision that she makes. (Under the criminal law, a person who is threatened with violence if he does not rob a bank immediately, for example, will not be sent to jail for the bank robbery, for he acted under duress. The duress defense recognizes the pressures inherent in being threatened, even if such pressures do not render the resulting conduct justifiable or right.)

It is, of course, possible that I am reading something into the U.S. pro-life view that is not there, in postulating that this approach exempts pregnant women from criminal consequences for abortion based on an underlying understanding that they are under duress. I do think, however, that my reading provides a desirable coherence to a position that is otherwise difficult to sustain.

If one acknowledges – as I suggest that the U.S. pro-life approach does – that an unwanted pregnancy represents a unique and profound threat to the pregnant woman, then a number of propositions follow from that acknowledgment. First, a pregnancy that is actually life-threatening justifies termination in self-defense. That is, once one acknowledges that a pregnancy inherently threatens a pregnant woman's bodily integrity, then it follows that she may justifiably act to protect herself from the threat, if necessary to save her own life.

If, on the other hand, a pregnant woman is viewed as simply a person – like any other person – with an equal moral obligation not to kill the fetus, then she may no more justifiably kill the fetus to save her own life than could a person suffering heart failure kill his own son (or a stranger) to obtain a needed transplant. That is, the position that a pregnant woman has an excuse from criminal liability when she terminates her pregnancy lines up well with the position that she has an actual justification for terminating her pregnancy when continuing to term would threaten her life. One can think of a dangerous pregnancy as "threatening" a pregnant woman's life only if one first accepts that any pregnancy necessarily acts on the pregnant woman in a way that situates her differently from everyone else, relative to her fetus and to its continuing life. This is why she may justifiably abort to save her own life, but no one else may terminate her pregnancy to save a third party's life.

Understanding the woman experiencing an unwanted pregnancy as being "excused" for her decision to terminate also explains the effort to punish and restrict people from funding, performing, and otherwise facilitating abortion. If an act is excused, then it is still wrong, and society – through law – has an obligation to try to prevent it from happening.

Moreover, on this approach, while a pregnant woman is in a desperate situation, the doctor who performs her abortion is not. The doctor experiences no threat to her own bodily integrity by virtue of the patient's unwanted pregnancy, but simply wishes to assist her patient in carrying out a plan that all pro-life thinkers regard as wrong and unjustified.

As with any "excused" action, as distinct from a "justified" action, third parties remain criminally accountable for the assistance they provide, because they cannot rely on the excusing conditions that explain (but do not justify) the excused actor's choice.

Pro-Choice and Pro-Life: The Importance of Excusing the Woman

At first blush, the difference between exempting from criminal responsibility the woman who terminates her pregnancy, on the one hand, and holding her accountable along with everyone else, on the other, may seem trivial. The practical upshot of either rule appears to be the same: A woman who seeks to terminate her pregnancy will have an extremely difficult time doing so, because the people on whom she must rely for assistance risk criminal penalties in providing that assistance.

In practical terms, anyone who believes that women should have access to safe and legal abortions will understandably find both pro-life positions intolerable. Indeed, a woman who seeks an illegal abortion is unlikely to feel much emboldened by the fact that she herself will not face criminal penalties: The real dangers of the back alley, and of failed abortion attempts, can far exceed the risk that she may be caught and sent to prison for her actions.

Nonetheless, the difference between the two views and rules, at one level, is significant. Unlike the "abortion = murder" approach – which penalizes women and providers alike, and which offers no exception for the mother's life – the U.S. pro-life approach does not completely erase the reality of what an unwanted pregnancy imposes on the pregnant woman. By exempting her from criminal responsibility, it does not, of course, make it easier for the woman to procure an abortion. It does, however, show that it shares the pro-choice perception of a woman who seeks an abortion as not as culpable as a woman who, after giving birth to a baby, decides to kill that baby.

Instead of equating abortion with infanticide, this approach recognizes that a fetus that inhabits a woman who does not want to be pregnant – even if that fetus is as much a rights-bearing person as any other – is doing something physical to the woman that gives rise to various entitlements on her part. One entitlement, on this approach, is the woman's right to kill the fetus if necessary to avoid dying herself, and another is her right to be left alone by the state if she either attempts to terminate or succeeds in terminating her pregnancy.

These entitlements and the recognition they may reflect show a respect for the pregnant woman and her circumstances that is wholly lacking in the "abortion = murder" model. Thus, to the extent that women's equality rests on a society's understanding of pregnancy, this ideological divide exposes a profoundly important distinction that the pro-choice movement should acknowledge, even as it fundamentally parts ways with the entire pro-life movement on a woman's right to choose abortion.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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