The punishment I favor for abortion
As a libertarian, I fully accept the motto that what a woman chooses to do with her own body is her business. As someone who can count, I believe that abortion involves two bodies. That’s what makes it a difficult question.
So what would it mean as a practical legal matter to outlaw abortion? That is a question I have been asked frequently since being fired by the Atlantic over a 4-year-old, six-word tweet and accompanying podcast in which I was alleged to have voiced an extremist view on the matter of criminalizing abortion — that it should be punished by hanging.
That isn’t my view at all. But it leaves the question: What should be done?
For some people, even to ask the question brings up dystopian images, from The Handmaid’s Tale to the Taliban. To me, a better model than the imaginary Gilead is the real world’s France.
France, like many European countries, takes a stricter line on abortion than does the United States: Abortion on demand is permitted only through the 12th week of pregnancy. After that, abortion is severely restricted, permitted only to prevent grave damage to the mother’s health, or in the event of severe fetal abnormalities. France is not a neo-medieval right-wing dystopia.
The law in France imposes penalties on those who perform illegal abortions, ranging from forfeiture of medical licenses for doctors to fines and, in some cases, incarceration (for providers, not for the woman obtaining the abortion) ranging from six months to 10 years. Those sanctions seem reasonable to me. Why not start there and see how it works?
The French model does not represent an ideal final settlement. It would, in fact, leave untouched the vast majority of abortions, about 90 percent of which happen during the first trimester. It would, however, represent a welcome advance — one that would establish a post-Roe v. Wade legal framework for incremental reform. Whether to restrict abortion at the 12th week or the eighth week is a very different discussion than the one we are presently having.
Abortion is an absolute evil, but abortion opponents need not fall into the trap of political absolutism. Any enduring political settlement will require consensus, and that can only be worked out through the democratic process. It may be a 50 year or even 100-year project. But strong-arming the country with a 5-4 Supreme Court vote or a temporary congressional majority is not the way to a lasting settlement.
The question for abortion opponents is this: Shall we act on our desire to punish or on our desire to stop the killing? These desires do not necessarily lead in the same direction.
The desire to punish is not always ignoble — sometimes, it points us in the direction of justice. But it can lead us astray, too, as it does in the matter of capital punishment as it currently is practiced in the United States.
A more prudent path is one of reducing and mitigating the violence.
The gradual legal prohibition of abortion, even if it were enforced with relatively mild penalties, would close the clinics and separate the medical profession from the abortion business. That alone may very well get us 95 percent of what we want. And if that does prove to be the case, we may learn from the example of the failed drug war that the best approach to the remaining 5 percent is something other than more severe punishment.
Easier access to nonabortive contraception, better adoption procedures and improved access to care for vulnerable young mothers probably would do some good. So would a change in the social attitude that treats pregnancy as though it were a disease.
I differ from most pro-lifers in that I am willing to extend criminal sanctions to women who procure abortions and to those who enable abortions, assuming they are mentally competent adults ordinarily answerable for their actions. But this thought experiment has us writing one part of an imaginary statute without seeing the rest of the law. Only real-world experience will show what is effective, and our preference should be for the least-invasive effective settlement.
We are a long way from having that fight. Even if Roe v. Wade is overturned tomorrow, there is no obviously national aspect to abortion, so we will confront 50 fights in 50 legislatures representing 50 different political realities. It does not seem likely the people of New Jersey and the people of Utah will come to the same settlement, but abortion opponents should not replicate their rivals’ error by attempting to subvert the political process. It will be a long and frustrating process, and much evil will be done before it is complete. But that is the work before the pro-life movement, and there’s no avoiding it.