Was Trump Right That Women Who Have Abortions Should Be Punished?

By John Zmirak Published on March 30, 2016

Abortion is unique because pregnancy is. The fact that an unborn baby resides entirely inside the body of another human being with rights of her own makes mincemeat of our whole approach to justice, which is based on individual rights, balanced against the rights of others and the claims of the common good.

Yes, the baby has the right to life, but the mother has the right to control her body, too, so how can we disentangle the claims of two people who literally inhabit the same space, eat the same food, and are intimately related? To what else can we compare this situation: Siamese twins? A stubborn, unwanted tenant? A famous violinist who needs to share a healthy person’s organs, whose fans have kidnapped her and hooked the two together? Since no other relationship is exactly akin to pregnancy, all analogies finally fail. Abortion has no prefabricated answer, but requires the careful needle of a custom-tailor statesman.

Donald Trump in his blundering way put his finger on the core difficulty yesterday when he asserted, and then denied, that pro-life laws should include legal penalties for the mother. His flip-flop probably was what his rival Ted Cruz asserted: the kind of reversal you go through when you really think about an issue for the first time in your life.

Or maybe Trump has faced the question before. He has publicly boasted of sleeping with uncounted women — many of them the wives of other men. What are the odds that not a single one of these women became pregnant, and came to him for answers? Some reporter should ask him about this, perhaps with this tactful formula: “Mr. Trump, given the thousands of women you claim to have had sex with, how many abortions have you demanded or paid for?” Given Trump’s willingness to drag his opponents’ wives’ medical histories into the campaign, this question seems fair game to me.

For those of us who, like Senator Cruz, have been pro-life for decades, the issue has already vexed us: We know that abortion is homicide and are willing to punish the doctors. Indeed, I’m in favor of quite strict punishments for abortion profiteers. But since the woman who hires the doctor is the primary author of the decision, does it really make sense — as all prominent pro-lifers have prudently chosen to say — that we would never punish such a woman? What’s the logic there?

Well, the first logic is political. We know that treating women as exclusively the victims of abortion, and never as its author, is absolutely critical to passing any pro-life legislation. So we’re willing to overlook the moral inconsistency, rather than let the “best” be the enemy of the good. In the same way, most pro-lifers reluctantly make an exception for genuine victims of rape, who never willingly took the risk that their body might be on loan for the next nine months. We don’t like it, we know it doesn’t quite embody justice for the unborn, but we fear that such is the best law we could probably ever pass and really enforce.

The problem with the rape exception is obvious: We don’t have the death penalty for rapists themselves, so why should we impose it on their children? There is no satisfying answer, but you could ask the very same question about a pregnancy that directly endangered a mother’s life: That child is just as innocent. It isn’t as if he were trying to kill his mother…. We acknowledge the wretched messiness here and try to pass the least bad law that we can.

So no, it wouldn’t be perfectly fair to severely punish doctors who provided illegal abortions, while completely absolving the women who sought them out and paid their fees (not to mention the ne’er-do-well boyfriend who drives her to the abortionist, happy to be relieved of the burden of a newborn making the case for him growing up and becoming a responsible husband and father). At the same time, there is a real difference between a woman who hires an assassin to murder her husband, and one who procures an abortion. The obvious difference is that the first woman has other options for getting away from a husband, however abusive. A pregnant woman can’t escape her pregnancy, however unwanted or traumatic, without taking an innocent life. Many, perhaps most women who make the lethal choice of abortion are terrified and desperate. The decision itself does them grave emotional, spiritual and even physical harm. Any one of these factors would be enough to mitigate the remaining punishment that might be called for.

In fact, the most productive and compassionate approach to this vexing question may be this: We decide as a society to stigmatize abortion as such a desperate, self-destructive and irrational act, that it cannot be treated as grounds for a criminal prosecution of a mother. Instead we will treat women who go outside the law to end their pregnancies the same way we treat people who attempt to commit suicide. We might mandate that they get help, in the form of counseling — instead of leaving them to face the crushing guilt without support, as Planned Parenthood leaves the young women who fall into the organization’s clutches today, shooing them out the door after taking their fees and selling their babies’ organs. We would waive all charges against a woman in return for her help in prosecuting the doctor. As to him, he should get the same legal treatment as Dr. Kevorkian, the ghoulish suicide doctor.

This answer isn’t perfect. Some will say that it infantilizes women by treating their (im)moral choices about their pregnancies as pathological. It’s not a great answer for women who repeatedly decide to have illegal abortions. But it’s the closest thing to a fair solution possible in our degenerate society.

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