Are Abortion Laws Unenforceable?

The abortion laws in the United States, as a result of a series of Supreme Court decisions starting with Roe v. Wade and Doe v. Bolton and continuing through the 1980s and 1990s, have become the most permissive in the Western world, allowing abortions even in the third trimester. Most Western European countries, with the exception of Germany and most of the United Kingdom, restrict abortion to the first trimester, with various exceptions for health-related issues, counseling, and sex crimes. The only Western European countries prohibiting abortion are Northern Ireland and the Republic of Ireland, which has come under increasing pressure from the European Union and other advocate groups to change the prevailing law.

But trends favoring stricter abortion laws in the United States have become noticeable in recent years. In Gallup polls during the last three decades, support by both sexes for legal abortion “under any circumstances” peaked in the early 1990s but has receded since then. At present, the majority among both sexes (about 70 percent) holds that abortion should be prohibited or “legal only under certain circumstances” — cases of rape, incest, and danger to the life of the mother.

Ideally, laws should reflect and bolster morality, but their main purpose is to contribute to the maintenance of public order. The German philosopher Immanuel Kant, living in the 18th century in an era when ideals of republican and democratic government were taking the world by storm, theorized that, in a properly organized representative government, the laws should be able to maintain good order even “in a nation of devils.”

Kant’s opinion was overly optimistic, of course — but laws often do take account of evil and permit actions that many, or even most, consider immoral. In the United States, we sometimes hear of government protection being offered for Mafia bosses who turn state’s evidence; legalized prostitution in various parts of Nevada; and, through the Supreme Court decisions in Griswold v. Connecticut (1965) and Lawrence v. Texas (2003), overturning laws that had prohibited contraception and sodomy on the basis of the “right to privacy.”

The same “right to privacy” was the chief penumbra of the emanations that were invoked to justify the decision on abortion in Roe v. Wade. In other words, although abortion may be considered by many persons to be murder, in any case it is private murder. It has almost been put in the same category as suicide, which is a completely personal and private self-murder, and largely untouchable by any legislation.

We have been talking about abortion “laws,” but this is of course a misnomer, since the Supreme Court cannot make laws. Laws, properly and strictly speaking, should be made by legislative bodies — in the United States, by state legislatures and Congress. We have the famous unhappy precedent of the notorious 1857 Dred Scott decision of the Supreme Court, which became the law protecting slavery and required Congress to pass the 13th and 14th Amendments in 1865-66 in order to be abrogated.

 

But as the polls above indicate, the climate of opinion in the United States seems to be changing regarding the permissibility of abortion. State legislatures are beginning to take some initiatives in the restriction of abortion. If they are successful, we will probably be confronted with the scenario of competition between permissive and non-permissive states. But is it conceivable that the U.S. Congress could eventually step in with firm guidelines, ending the controversies and the befuddlement?

Legislators, including a strange contingent of professed Catholic congresspersons, often say that they are “personally opposed to abortion, but…” This self-justifying declaration is often taken by pro-life advocates as a species of moral cowardice — refusing to stand by their own asserted moral values in fulfilling the obligations of the position they were elected for.

But let us try to put a better face on their claim. Possibly some, or even many, such legislators are thinking of the following scenarios in the aftermath of making abortion illegal:

  • Abortion providers going underground, establishing lucrative black-market businesses.
  • Presidents like Barack Obama ordering the Department of Justice to not enforce the law (as has happened recently with the Defense of Marriage Act, which the president does not agree with).
  • Local police or federal agents reassigning forces now straining to combat violent crimes and enforce drug laws in order to close down abortion facilities and pursue the underground abortionists (presumably the marked offenders would not be women in the aftermath of pregnancies, but the abortion providers themselves).
  • Inevitable massive civil unrest, due to the fact that the “right” to abort, granted and secured over the years by the Supreme Court, had now been taken away — even from those who don’t wish to exercise it.

Imagining such a scenario, our “personally opposed, but” legislator may be thinking that he or she is in the same shoes as the dedicated Prohibitionist congressman in 1919, who was convinced of the sinfulness of alcoholic beverages, but facing the reality of enforcing a law in spite of inevitable widespread opposition. In other words, such a personally opposed 1920s Prohibitionist might fail to legislate against production and sale of alcoholic beverages, simply because such legislation would be unenforceable. And so, similarly, a contemporary legislator’s “personally opposed, but” might be based simply on his or her conviction of the unenforceability of laws restricting abortion.

Let us continue this analogy with the Prohibitionist legislator a little further: That legislator might have compromised and successfully proposed some restrictions short of total prohibition — for example, restricting the sale of alcohol to certain times and/or places (such restrictions exist even now in certain states and cities). Analogously, would the best hope for successful pro-life legislation be to settle on the first-trimester restrictions prevailing in many Western European countries, and/or granting exceptions only for rape, incest, or threats to the life of the mother — the exceptions supported by many Americans otherwise opposed to abortion?

The ancient Roman proverb fiat justitia, pereat mundus (“let justice be done, even if it means destruction of the world”) is taken by most of us as a caution against trying to change everything for the better precipitously. But, of course, times change, and with them, providential openings and opportunities emerge. Legislation can even inculcate morality. Have not laws against drug trafficking arguably been responsible for getting many to value a drug-free mode of life? Laws against racial discrimination have certainly had the effect of inculcating a sense of fairness and openness to other races in the last two generations.

The most auspicious development for the pro-life movement may be the ongoing legislative drives for a Personhood Amendment to the Constitution. In the 1973 Roe v. Wade case, Justice Potter Stewart had presciently advised the abortion-rights attorney that she would have “an almost impossible case” if it were recognized that the unborn fetus is a person with legal rights. Looking back at Justice Stewart’s comment may indicate the best-case scenario for pro-life advocacy. The recent overwhelming approval of voters in the state of Georgia for a personhood amendment could be just a first spark. Similar developments favoring legal personhood for the unborn are also taking place in Mississippi, Colorado, Nevada, and other states.

It goes without saying that a massive nationwide change, recognizing the unborn human fetus not just as a person but as a legal person, with all the rights of personhood, would amount to a sea change in moral perspective — a change fortunately bolstered by modern biology and embryology, which have given us a clearer insight into early fetal life and development, and the initial reflexes and sensitivity to pain of the unborn.

Howard Kainz

By

Howard Kainz is professor emeritus at Marquette University. He is the author of several books, including Natural Law: an Introduction and Reexamination (2004), The Philosophy of Human Nature (2008), and The Existence of God and the Faith-Instinct (2010). Professor Kainz is a regular contributor to Crisis Magazine.

  • Jesurgislac

    “presumably the marked offenders would not be women in the aftermath of pregnancies”

    Laws against abortion are invariably primarily targeted against women who have had abortions (or who are suspected of having had abortions – women who’ve had miscarriages outside of a hospital are treated as criminal suspects).

    While illegal abortionists may be prosecuted when found, laws against abortion are used to target and harass women. That’s what being pro-life is all about.

    A fetus may become a legal person. But this could not prevent abortion, unless a fetus is to be given legal rights over the use of another human being’s body that no born person has.

    • Andrew Ellis

      “But this could not prevent abortion, unless a fetus is to be given legal rights over the use of another human being’s body that no born person has.”

      In which case, presumably, you will submit that there is no legal premise whatever for criminal neglect of a minor. A woman delivers her child into a toilet, and leaves it to die, wholly and entirely dependent upon her person for its survival.

      Jes, based on your assertion, there is nothing to prosecute. The child had no right to expect anything of the mother to begin with.

      Laws against abortion aren’t “used.” They serve specifically to provide equal protection under the law of both women and children. THAT is what being pro-life is all about.

      • Mrs. F

        Very few unborn babies can be said to be causing “ongoing internal multiple organ damage”. At 9 months pregnant, yes, my stomach is crowded, increasing heartburn: uncomfortable, not permenant or life-threatening. My bladder is also crowded and has a lower capacity: again, uncomfortable, sometimes inconvenient, but not anything that could be called damage. My uterus is stretched farther than I could have imagined, but it is designed for that and (amazing, yes) it goes back to normal without damage. There is no “ongoing internal multiple organ damage in a healthy pregnancy, not even in many high-risk pregnancies.

        The core difference between the baby and the tumor: The baby is an individual, created by God, given a soul, intended by him. My actions gave opportunity for the child, but nothing I did or did not do caused the tumor. The child is my resposibility; it is my duty to take care of her. Only the pathetic, immature or evil seek to abandon their duties and responsibilities and hide it behind rhetoric that denies basic personhood to someone with her own unique DNA, fingerprints, brain waves and soul.

    • Mary

      Every transplant recepitent has the rights you are proclaiming that no one has. No one is entitled to assert any right that requiring slicing up someone else’s body.

  • Briana

    To Jesurgislac:

    I’m not buying your notion that a baby “has rights to use of another human being’s body that no one else has.” Last I knew, none of them asked to be conceived in the first place. Being pro-life is not about targeting and harassing women. I’m not sure what an alternative solution is if the mother’s life or health is in danger, but more often than not there are ways for women to deal with unintended pregnancies without jeopardizing the lives of the unborn. I would say that the pro-choice position is harmful to women because it runs the risk of leaving them to fend for themselves when they are dealing with an unintended pregnancy. If there is no one to reach out to these women they probably could feel that an abortion clinic is the only place they can turn to.

  • Maggie S

    Clearly the Personhood Movement, growing by leaps and bounds, will settle the matter once and for all. There can be no exceptions or compromises on evils like abortion when every human being is recognized as a person under the law.

    • Cord Hamrick

      Melanie:
      You write:

      So should miscarriages be criminalized too?

      Of course not. Human beings die of unavoidable natural processes daily; not every death is a murder because not every death is caused by the positive action of another human being who intended to cause it. Willful abortion is exactly that: A positive action intended to cause the death of a person. But miscarriages or “involuntary abortions” are the other kind of death.

      By the way. there is nothing in the pro-life position which would lead to the conclusion that pro-lifers wished to criminalize miscarriages. Why, then, would you bring up such a straw-man? It isn’t a very honest way to argue, you know: assigning absurd positions to those with whom you disagree!

      Even if they aren’t, tampons with suspected zygotes should be given last rites and funerals instead of flushings by your standard carried to its conclusion.

      Well, obviously, a tampon wouldn’t be given a funeral. That’s for persons, not devices. But I suspect that phrasing was mere inadvertence on your part.

      As for “suspected” zygotes? I suppose that’s a matter of degrees of uncertainty or certainty. One cannot of course bury a body with the respect befitting the humanity of the departed when the body in question is too microscopic to know its location! We are morally responsible for what we can do, not for what we cannot. One can do it, for example, if the body is visible to the naked eye.

      So if a woman knows she is pregnant, and then later knows that she has miscarried at a quite early stage, then the inability to know with any certainty when/if the body of her child has been expunged obviously puts any question of “respectful disposition of the body” out of the question!

      But “respectful disposition of the body” is only part of proper respect for the dead, of course. I know of very few Christians (Catholic, Orthodox, or even Protestants), who have miscarried and did not at some point pray (in some fashion) for their departed child. In fact it wouldn’t surprise me in the least if agnostics and atheists did likewise on occasion (“If beyond all probability there is a God and people have souls after all, then please care for my child.”). It is fitting to recognize and respect the humanity of those we have lost. That we do so is a sign of our own humanity; doing so further humanizes us.

      • Melanie

        Some Latin anti-abortion countries are indeed criminally investigating miscarriages for evidence of criminally negligent manslaughter or even illegal abortions. By your zero tolerance standards, women who drink alcohol or practice extreme sports and then miscarry should be prosecuted. And since all women increasingly miscarry as they age, perhaps Catholic couples should cease all sex between mid-thirties until after menopause to avoid such miscarriages.

        Since you oppose Plan B pills because of their resulting microscopic abortions, and you consider zygotes the same as infants, children and adults, I think you should be treating early miscarriages and Plan B abortions to full funeral services. You should be doing this at least within your own family to be consistent with your fellow believers who stage funerals at abortion and fertility clinics.

        • Cord Hamrick

          Melanie:

          Are the Latin American countries investigating where probable cause to suspect a clandestine abortion is absent? If so, then: Shame on them, they shouldn’t, and by doing so they multiply the grief of a grieving mother.

          Is probable cause indeed present? Then they should proceed cautiously, since probable cause is not the same thing as assurance of guilt.

          I myself would not advocate investigation of the kind you describe except in particularly blatant, egregious cases.

          (Do you know that the cases you have in mind are not blatant, egregious ones? Not that I much trust the dysfunctional justice systems and corrupt police forces in Latin America! But it’s worth asking: Some few of those cases may have been rather begging for prosecution. You get people like that tree-poisoning joker in Alabama who do something and then call up talk radio or write posts on their Facebook page to brag about getting away with a crime.)

          Anyway, your questions (miscarriages, alcohol and extreme sports, et cetera) boil down to this: What if it turns out to be very difficult to try to live in a fashion consistent with the Moral Law? Can’t we just, y’know, disobey the Moral Law a little, in order to make life easier?

          The answer is, “No, we can’t.”

          But don’t misunderstand me: I’m not taking a Pollyanna-ish view of things. We must attempt what is right. That doesn’t mean we’ll always succeed. Nor does it mean that right action never has unpleasant side-effects.

          We won’t always succeed, and right action often has unpleasant side-effects. That’s life in a fallen world. Living with that sad reality is a part of adulthood.

          Our job, then, is to live according to our highest principles and, as much as is possible, mitigate whatever bad side-effects might arise.

          So do we defend innocent fetal humans against violence? Yes.

          Do we therefore investigate miscarriages? Well, no: They’re not intentional.

          But do we investigate things which the mother calls a miscarriage but which we have excellent reasons to believe was actually abortion? Probably, if the reasons are really all that excellent.

          What if we’re unsure how excellent our reasons are? What if it’s just a suspicion?

          Well, those are the gray areas in all human law enforcement, but I’d lean against investigation.

          I suppose that’s where you decide a standard of evidence which must be met or exceeded before an investigation may be begun, and monitor the results, and if the standards you’re using to justify starting an investigation are so low that the resulting investigations don’t produce convictions at least, say, two-thirds of the time, you raise the standards until they do. A standard like that will produce few investigations; it amounts to limiting investigation to egregious cases.

          As for alcohol and extreme sports and whatnot: Can you imagine how difficult it would be to prove causality? No. Nothing like that would or should get investigated. Prosecutors don’t react in a friendly way to police handing them a case that’ll get them laughed out of court.

          And as for whether I would conduct a funeral if my wife miscarried…did you not read my earlier post?

          “Funerals” proper are for the respectful disposition of the body in accord with human dignity. You can’t do that if you can’t find a body. You can have a memorial service, I suppose, in which the purpose is to comfort the grieving and pray for the departed and those left behind. I would certainly do this were my wife ever to miscarry.

          And that is what protestors at abortuaries do, which seems reasonable enough. But I don’t suppose they conduct burials since they generally don’t have access to the child’s body, and have nothing to bury.

  • Cord Hamrick

    A fetus does have legal rights over the use of another persons’s body. And it is not necessarily the case that no other person has such rights.

    We are speaking of whether a person who:
    – Has a close familial bond with the adult woman;
    – Is temporarily dependent on the adult woman for life;
    – Became dependent through no fault of their own, and certainly not because they initiated an attack, but rather because of (in 99% of cases) the voluntary actions of the adult woman herself;
    – Is temporarily dependent on the adult woman in a fashion which (in 95% or more of cases) does no permanent harm, and little temporary harm, to the woman;
    – Cannot be removed from this state of dependency without dying a violent death by techniques which, if forced upon a child outside the womb, would be regarded by our laws to be a bloody and despicable crime;

    …and, we are speaking of whether it is a violation of the human rights of this dependent person for her mother to hire a hit man to do the deed.

    Once in another thread (in debate with you, Jer!) I posited an equivalent scenario in which the only differences were geography and the age of the child; that is to say, whether the child was inside or outside the womb, and whether the child was fetal or a four- or five-year-old.

    This scenario seems pertinent to repeat.

    What would — what should — our laws do with a woman who forcibly ended her child’s dependency on her body in the following scenario, resulting in the death of the child?

    Scenario: A woman is leaning on a railing, waiting on an elevated platform for her child — whom perhaps she never quite wanted — to arrive by elevated train. The woman’s armed bodyguard is with her; there is nobody else about. The platform is about forty feet above the ground, as is the track, and the railing consists of a horizontal top bar (on which the woman is leaning) supported by vertical bars about five inches apart from one another.

    There is a train disaster and the train cars derail from the elevated track. The side of some cars rubs against a concrete column, peeling the metal open and hurling some passengers through the air to plummet twenty feet to their deaths, but one small passenger is hurled towards the woman and by some miracle manages to catch hold of her arm, which is stuck through the railing (that is, beneath the top rail-bar on which the woman was leaning, and between the vertical bars). The child’s falling weight pulls the woman up against the vertical bars near the bottom of the rail; she is on one side supported by the platform, the child is dangling in the air on the other. Their fingers close around one another’s arms.

    The bodyguard starts to come forward to help, but the woman, seeing an opportunity, says, “Wait….”

    The relevant elements are all there: Temporary dependency (until someone else comes along who can pull the child to safety). Possible health problems to the mother (blood clots could form in an arm held in such an awkward position, and perhaps the mother has other relevant health problems). Closeness of relationship (mother and child). The bodyguard has, perhaps, the ability to help with the problem.

    But what if the mother, seeing an opportunity to rid herself of a dependent who has been a lag on her career…or even of a reminder of a rape…tells her bodyguard to wait, in hopes that the child loses her grip and falls?

    What if the mother actually releases her own grip on the child’s arms and tries to shake her off?

    Actually, neither of those are analogous to what the mother does when the mother pays a trained medical professional to kill her unborn child. Something more analogous would be the mother turning to her bodyguard and saying, “Pull out your gun; I’ll pay you $500 to blow my daughter’s brains out.”

    (It is, after all, a paid transaction initiated by the mother, which results in the violent death of the child.)

    How would our legal system deal with such a deed? How should our legal system deal with such a deed?

    The child is in a state of dependency, through no fault of her own. It is uncomfortable for the mother, and there is a small percentage chance it could harm the mother.

    And, let’s not forget: This is not a random stranger. This is the child’s MOTHER.

    Do people ever have a legal obligation towards their fellow man? If a bad swimmer is walking past a lake and sees another man drowning, we probably do not hold him legally culpable if he does not try to help (lack of ability). But if a Red Cross Certified lifeguard with life vests thrown over one shoulder is walking past a lake — where there is a long rope and a rowboat pulled up on the shore — and sees a man drowning, and does nothing to help, we arrest the lifeguard. I believe the term is “depraved indifference.”

    How is that obligation to help not increased, if the lifeguard is a woman, and the drowning person is her child? At the least the obligation is not lessened.

    And abortion is not letting the child drown. Abortion is rowing out there with a doctor-friend and paying the doctor to help you hold the kid under.

    So, yes: If a fetus is a person, then this places a legal obligation on the mother not to terminate the pregnancy. To do so is to initiate violence against another person, to alleviate a temporary dependency which is always uncomfortable, but rarely life-threatening. The fetus does have a legitimate legal claim on the “use of the mother’s body”; that is to say, on her passive assistance and nonviolence, just as the child in the train accident has a claim on the mother’s arm, and the drowning child has a claim on the lifeguard-mom’s time and skills and gear.

    • Cord Hamrick

      Melanie:

      All fetuses do not “threaten their mothers with permanent and lethal damage.” Obviously!

      Or at least, they do so only in the same fashion that human beings generally threaten us. It’s amazing how dangerous it is to be in close proximity to a human! If they don’t murder you, they break your heart; if they don’t break your heart, they irritate your sensibilities; if they don’t irritate your sensibilities, they run up your charge card; if they don’t run up your charge card, they turn out to be such ridiculously decent, kind, and saintly people that they make you look bad by comparison and threaten your egotism.

      A deadly species, indeed.

      But look at the number of pregnancies which cause the death of the mother, and compare them with those which merely cause nausea and stretch-marks. This is such grave danger that you claim a license to preemptively kill? (Lord help the air conditioner repairman or meter-reader if he shows up at your house unexpected!)

      You add,

      Surgically removing threatening “growths” can’t be compared to drowning separate already born children who aren’t threatening anyone.

      Good of you to put “growths” in scare quotes; I’d have done it if you hadn’t saved me the trouble.

      For that of course is the question. Are they merely “growths” or are they persons in a very early stage of development, innocent of all wrongdoing, voiceless, and vulnerable?

      If we are talking about a person, then of course the analogy to drowning a child is perfectly legitimate. If we are not, then the analogy to removing a growth is the correct one.

      Now the science and the logic are all on the side of personhood, but perhaps you aren’t convinced. Perhaps you’ll say, “Well, maybe the unborn are persons, and maybe not. Maybe they somehow obtain personhood later on.”

      But “maybe” means that the pro-life, not the pro-legal-abortion argument, wins. For of course a failure to err on the side of caution in preserving what might be a human life is itself a crime, another form of “depraved indifference.”

      As Peter Kreeft notes in his “Pro Life Philosophy” lecture (you can find it among the audio downloads at his website), it is like going hunting, and you see some movement in the bushes which might be your fellow hunter. Do you just go ahead and shoot, hoping it’s just a deer?

      Or, it’s like driving down the road at night and seeing what might be a crumpled up coat or blanket, or what might be a passed-out homeless person, on the street ahead. Do you just go ahead and run over the object, hoping it’s not a person?

      The point is that if you’re certain the unborn are not persons but are mere “growths,” then of course you may remove them. Indeed, I wish very much that there were some good scientific or philosophical argument by which we could be certain of just that! In that case, we could relax and forget about the whole topic (what a relief!).

      But if you’re uncertain, then you have to err on the side of not murdering a person. This too, is a risk: You might be needlessly causing a woman to endure nine months of varying discomfort for nothing. But that is much less of an evil than depriving a person of their entire life. It is plain which risk has the higher moral priority!

      You mention the train scenario and the possibility of one rock climber shrugging off another for survival. Did you note, however, that they aren’t equivalent? In the train scenario, the woman has no danger of falling, and the danger of health risks associated with the event is relatively low (single-digit percentages, as with pregnancy). But in the climber scenario, it is a question of one person dying, or both.

      That, I think, is where “double effect” comes into play. Take ectopic pregnancy: The Catholic church does not (and I do not) oppose the removal of the placenta which implants in the wrong location. Likewise the removal of a cancerous uterus. The death of the developing person is foreseeable, but it is the saving of the mother’s life by a normal therapeutic procedure which is intended.

      But the vast majority of abortions are nothing like that. In more than nine out of ten of cases there is no risk to the health, let alone the life, of the mother. And the act which is paid for is not the removal of a diseased organ (with unintended if foreseeable side-effects) but the dismembering of the helpless person, which is directly intended and is the primary goal of the action.

      This is why I said, in the train scenario, that it is not merely like the woman releasing her grip on the dangling child’s arm. It is not even quite like the mother shaking the child off. It is more directly analogous to the mother saying to her bodyguard (whom she could have asked to help her save the child), “I’ll pay you $500 to blow my daughter’s brains out.”

      You know, I hate using that scenario. It has to be done, but….

      Well, this post is too long already. I think I’ll put what I was about to say in another post, below.

  • Andrew Ellis

    To establish the legal personhood of the unborn is to acknowledge the inherent human dignity and consequential rights endowed unto each and every one of us – not by a government, but by our creator. The principle must be universally applied, or the very foundation of law and order is groundless, and the equal dignity of all human persons is nothing more than an arbitrary value wholly subject to widespread personal opinion. Not unlike the application of slavery.

    So long as the law fails to acknowledge the principle of inherent human dignity universally, and to protect and defend those rights inalienable to human persons, no person is safe.

    It is only a matter of time before other “inconvenient” or “undesirable” classes of persons are excluded from equal protection of the law.

  • BenK

    You can only prevent the second abortion, not the first.
    Why? You can’t prevent child abuse by forcing a person to be a good parent; only by taking away the child. You cannot take away the fetus. Thus, you cannot protect it from abuse.

    However, you can indeed prevent an unfit parent from having a second chance at childbearing. In fact, it might be a relief to some people.

    Can this be gender neutral (fair across genders)? Yes, if a father abandons a child in utero, he too could be prevented from all future failures of parenting post conception.

    Perhaps this is the way the laws should be written and enforced.

  • Cord Hamrick

    Ben:

    Do you mean to say: Sterilize someone who has committed child abuse?

    All just law is based in Natural Law as a subset of God’s Law (as are the concept of inalienable human rights and the idea that human beings have just sovereignty they can delegate to employees such as the government).

    It seems to me that our Natural Law responsibility towards nature, and especially towards our own natural powers and those of others, takes a sort of “First, do no harm” approach.

    So the idea of forcibly sterilizing another person seems out-of-bounds to me: It is an action which intentionally destroys one of his God-given natural powers; one which is “very good” in the Genesis 1 sense of the phrase. It is like forcibly amputating one of his limbs, or blinding him. Depriving a person of one of the normal human powers God gave him for his exercise is a very serious thing indeed.

    Moreover, I think the imposition of force in general upon another person is unjust (and thus evil) except when exercised either to punish or prevent or deter his doing forcible evil to a third party. For in that case he himself has (or is going to) use force for evil; force for the prevention of the same evil is thus justified and indeed has a kind of symmetry.

    So I think we can impose force upon a person to the degree required to constitute proportional and fitting punishment for a crime, or to the degree required to prevent or deter another crime. This is why murder and assault are wrong but (justified) self-defense and enforcement of a (just) criminal code by the police and (just) war are not.

    But because conceiving a child is not in itself a crime, I don’t see that forced sterilization falls within those bounds. I have heard castration recommended for serial rapists; that idea has a better argument in its favor. I suppose the argument for it would be particularly strong if the rapist somehow went around targeting women in their fertile days because he was intentionally trying to cause them to conceive against their will.

    But for child abuse? In such cases, the wrongdoing was the mistreatment of the child, not the conception of the child! The child has positive value in the world. (If he didn’t, we wouldn’t criminalize abuse of him!) His conception is therefore a boon to the world; his abuse is the evil act.

    So, no. I think your suggestion is well-intended and comes from a laudable desire to seek punishment which prevents the crime from being repeated. But I think you’re off-target slightly, preventing more than just the crime. It is, if you’ll pardon the phrase, “throwing the baby out with the bathwater.”

  • Cord Hamrick

    Folks, a couple of times above, I have used the “train scenario”; I also used the “drowning in the lake” scenario.

    You know, I really hate using those scenarios, and I wouldn’t do it were it not for the overriding need to see the truth clearly.

    But I hate it, because it’s awful. And I suspect that there are women who’ve had abortions, who may read this thread and recoil in horror and disgust. They may have been compartmentalizing their abortion in their minds, walling it off to not think about it, and clinging to the bad analogies and the suspect logic of the abortion industry to try and categorize it in their minds as a good and liberating thing.

    I’m sure I would, in their shoes: It’d be hard to live with myself, otherwise.

    If a person like that were to take notice of these arguments, she might rather hate me for relating them, as we hate anyone who risks upsetting our worldview, especially if it makes us look bad or feel guilty.

    If anyone like that is reading this, I ask only this: Try to abstract yourself away from your personal history and coolly evaluate what the truth is. That is our first moral responsibility as human beings: To know the truth. For who can make right choices, when they don’t yet know what the truth is and what their choices are?

    After that perhaps, comes moral responsibility and sometimes a sense of guilt, and that can be frightening to confront.

    But there, we humans are all very much the same: We “all have sinned and fallen short of the glory of God.” The best of us have been outright evil at times. It’s a horrifying thing to face up to, and if we didn’t have a forgiving God, all would be lost.

    But we do. Thank God, we do.

    And better to have faced the facts, however nasty, and to have sought and obtained forgiveness, than to have kept on, our whole lives long, disingenuously pulling the wool over our own eyes. For all our moral failures are like addictions we deny. (And, as with addiction, the first step toward redemption and health is admitting you have a problem.)

    Dear Reader: If nothing I’m saying seems pertinent to you, ignore this post.

    But I thought it needed to be said. I normally try to post very coolly reasoned argument, because I don’t think it’s proper to seize a person by their emotions to propagandize them into believing something they ought to embrace by being convinced through their intellect, fair-‘n’-square.

    But the “train scenario” and the “drowning in the lake scenario” are shocking to anyone’s sensibilities, no matter how clinically I tried to describe them. That was not my purpose, except insofar as was required for an accurate analogy (for the reality of abortion is shocking).

    Anyway, I hope anyone whose emotions are unduly affected will take a step back and ask, “What is true? Apart from whether it makes me angry or defensive, does this make sense?”

    And if any of it seems self-applicable, have the courage and integrity to ignore the implications for yourself until after you have decided what is true and right. That’s intellectual honesty.

    And if intellectual honesty turns out to deliver a rebuke, an accusation, a message of despair? Then that’s the time to pray. In fact it’s probably the best time: King David somewhere observed that God didn’t want him offering burnt sacrifices when the problem was David’s guilt, but that “The sacrifices of God are a broken spirit, a broken and a contrite heart. These O God, You will not despise.”

    And elsewhere (Psalm 32 I think) David observed…

    Blessed is the one
    whose transgressions are forgiven,
    whose sins are covered.
    Blessed is the one
    whose sin the LORD does not count against them
    and in whose spirit is no deceit.

    So we needn’t deceive ourselves. For there is (Thank God!) mercy. There is grace. There is healing. Evil, once identified, can be undone. Repentance and contrition and confession and forgiveness are like a counterspell against an evil incantation: A gradual unweaving of the bondage, a gradual untwisting of that made crooked, “…And backward mutters of dissevering power.”

  • Cord Hamrick

    What on earth?

    Melanie, the post I intended to be below my last one to you, somehow wound up above it. I’ve no idea why. (It’s the one I posted at 11:28 PM.) Sorry about that.

  • The bald Mexican

    Wait a minute, should a woman be charged with murder for procuring an abortion or not? It’s a simple question.

  • Mrs. F

    Cord,
    I appreciate your posts on this thread–I’m much to emotional about the subject to give thoughtful debate about it. In the case of an early miscarriage (to early for there to be a visible body, but far enough to be sure the woman was pregnant), it is often recommended that the parents give the child a name and have a Mass of the Ressurection said for him or her. It is not a funeral, but it is consecrating that tiny life to God.

  • http://arkanabar.blogspot.com Arkanabar

    ARGH! Errors in history!!

    The 1973 SCOTUS decisions enshrining abortion as an unlimited constitutional right are Roe v. Wade and Doe v. Bolton. Malta also outlaws abortion, though one might regard it as Mediterranean rather than Western European.

    Prohibition was enacted in the US by constitutional amendment in January 1919 and the Volstead Act in October 1919, so it was no struggle for a 1920s politician, unless he was after repeal.

    • http://www.crisismagazine.com Administrator

      Fixed. Thank you for catching that.

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  • Tony Esolen

    The analogy with Prohibition, which I hear all the time, is faulty, for these reasons:

    1. Not even the prohibitors believed that it was inherently immoral to, say, have a single drink of brandy. The argument was rather that drunkenness, which they DID believe was immoral, caused all kinds of social problems, including the abuse of wives and children, and destitution. So Prohibition, the “noble experiment” as Herbert Hoover called it, was based on a consequentialist argument.

    2. Prohibition was therefore an example of a law that forbade something that many people believed was a positive good — indulging temperately in “wine that gladdens the heart” was a boon to conviviality, and had been a part of the simple pleasures of life, among all classes, from recorded memory. It also applied the law globally, without disctinction of community and tradition.

    3. It is often said that Prohibition failed. This is provably false. The law did in fact curb drunkenness, and severely, too. One need only study actuarial tables of the time to find out how many fewer people were dying of alcohol-related diseases, like cirrhosis of the liver. Most people abided by the law, regardless of the speakeasies.

    4. The law also forbade something that was quite easy to procure or to make, privately.

    5. There have been laws prohibiting abortion in every country in the west, and for centuries. But no western nation I know of had ever prohibited the drinking of alcohol. Thus Prohibition was an innovation without any precedent in history or our cultural tradition.

    6. Prohibition, of course, did not concern itself with homicide, except to the extent that its supporters believed that it would lead, in general, to less violence.

    What would happen if we prohibited abortion? We might return to the status quo ante, when, first, men and women kept their pants on more often (and this too can be proved, by studying the birth statistics), and, second, unwanted pregnancies were almost always brought to term (another thing that the statistics demonstrate). The stories of many thousands of “back alley abortions” were lies even in the late sixties, as the liars themselves admitted. As early as the 1950’s, abortion PROPONENTS were arguing that abortions — which were of course all illegal — were safe. They will be a great deal safer now — for the mother, I mean.

    It is necessary to distinguish between objective evil and subjective guilt. The law, as Dr. Kainz observes, does not always reach to objective evil. A man who attempts and fails to kill himself is guilty of attempted homicide, but we do not punish him as we would punish someone who plotted murder. We take into account human infirmity, and human ignorance. These are judgments of prudence.

  • James

    Through state-based ultrasound bills, defunding of Planned Parenthood, and the coming “personhood” laws, red state governments will end abortion.

    What does end mean? It means abortions in those 30 or so states will be severely reduced — say 75%

    The remaining “back alley” or “black market” abortions will be few, and mostly done by people who have no regard for law or life. Decent law-abiding girls and families will follow the law.

    This scenario is the future of America. Don’t expect a national total ban coming from Washington D.C. or the federal judiciary. Do expect the red states to end abortion in the red states.

  • Michael PS

    We will never know how widespread illegal abortion was.

    From what I can remember of France, pre-1975, it was generally believed that every village had its “faiseuse d’anges” (angel-maker) and, certainly, the birth-rate had been declining for a century and a half, in a country where contraceptives were illegal for most of that time. Rural midwives were particularly suspect. The figure of a million a year (out of 19.3 million women of child-bearing age), bandied about around the time of the Manifesto of the 343 was an exaggeration, but the true figure was almost certainly higher than the current (legal) rate of 250,000. The rise in the birth-rate since the 1970’s, despite the greater availability of contraception bears this out.

    An elderly lawyer, a former prosecutor in Angers, told me, “Everybody knew about it, nobody talked about it and the police regarded it as women’s business and didn’t get involved.”

    The penalties were low, to keep cases out of the jury-courts, as judges were though more likely to convict, except for a brief spell under Vichy, when they started beheading abortionists, using military tribunals.

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