Crossing the Rubicon
This is almost certainly a mistake, but let's talk about Kevin Williamson and abortion. For those who are not aware, Kevin Williamson is a conservative writer, long known for having controversial and provocative positions on things (he came to my attention for stating that people in distressed, rural communities have no one to blame but themselves, since they could always move from those distressed rural communities). Recently, he was hired as a full-time writer for The Atlantic (a higher-end, intellectually-oriented magazine), and then last week un-hired. The source of his un-hiring was backlash stemming from repeated, public comments endorsing the idea that women who have abortions should be hanged.
It is this position that I would like to talk about for a moment. The general response is to declare this an "extreme" position that is outside the bounds of any abortion-related discourse. But, is it? If you read the podcast exchange and strip away the (by Williamson's own admission) inflammatory reference to hanging, Williamson's position is that women who procure abortions should be adjudicated under normal criminal law procedures. Williamson, I presume, believes that this is because there is no philosophical or legal distinction between a fetus and a born child. If you believe that, and the majority of the pro-life movement does (or at least claims to--more on that below), then Williamson's position flows naturally from its premises.
Think of it this way. Imagine a mother goes out and hires a hitman to kill her two-year-old child. Under at least U.S. criminal law, the mother could absolutely be charged as a principal to the murder, and thus would be subject to the maximum penalty for murder in that jurisdiction if convicted. At a minimum, they could be charged under conspiracy or aiding-and-abetting theories, which, while bringing with them lesser punishments (sometimes), are serious criminal charges with extensive sentences. There is almost no scenario under which the mother would not be facing criminal charges under this scenario. Considering all of this, if you believe that there is no distinction between a two year old and a fetus, then there is no real distinction between the hiring a hitman scenario and the procuring an abortion scenario--the woman has gone out and retained some other person to effect the death of the child/fetus. If you think these two are the same, and the first is clearly in the domain of criminal law for the mother, then why isn't the second?
Now, the broader, mainstream pro-life movement has tried very hard to distance itself from this conclusion. Here are the comments from the President of the March for Life, Jeanne Mancini, when then candidate Donald Trump suggested criminal punishment for women who get abortions:
“Mr. Trump’s comment today is completely out of touch with the pro-life movement and even more with women who have chosen such a sad thing as abortion,” said Jeanne Mancini, President of the March for Life Education and Defense Fund. “Being pro-life means wanting what is best for the mother and the baby. Women who choose abortion often do so in desperation and then deeply regret such a decision. No pro-lifer would ever want to punish a woman who has chosen abortion. This is against the very nature of what we are about. We invite a woman who has gone down this route to consider paths to healing, not punishment.”
If that's the case, why doesn't that logic apply to the mother who hires a hitman to take out the two year old? Surely some tragedy occurred that prompted that decision, some measure of desperation that pushed her in that direction. All of the same potential tragic circumstances in the abortion context can be imagined in the hitman context. If "no pro-lifer would ever want to punish a woman who has chosen abortion," does it follow that no pro-lifer would want to punish a mother who in some other desperate situation who decided to kill her child? I find that difficult to believe.
Likewise, look at Ross Douthat's column from Sunday. While the purpose of the column was to engage in whataboutism visa ve the pro-choice movement, he distances himself from Williamson in the following paragraph:
From my own anti-abortion perspective, this opinion makes Williamson an extremist as well. When American laws restricted abortion they generally did not impose such penalties, and today’s pro-life movement likewise generally rejects the idea of prosecuting women. This position often gets cast as inconsistent by pro-choicers, but I think it represents the incorporation by pro-lifers of the points that my pro-choice friends actually get right — that pregnancy is unique in ways that mitigate culpability and make it unwise to treat abortion like a normal homicide, that the government can only go so far in restriction without becoming a reproductive police state — without making the literally fatal mistake of believing these things also require a civil right to kill your unborn child.
So, "pregnancy is unique in ways that mitigate culpability." What ways are those? I mean, parenthood is tough and brings with it all sorts of challenges and obligations that non-parents don't have, but that doesn't translate into reducing culpability if parents kill their children. If anything, the fact that the fetus is literally, physically dependent on the mother for life would make the pregnant woman more responsible for the outcome of the child than another mother, not less. Again, if there is no difference between a fetus and a born child, then there is no reason to treat a pregnant mother any different from a parent.
Douthat then raises prudential grounds, stating that it would "unwise" to treat abortion as homicide to avoid "a reproductive police state." Huh? Presumably under any kind of anti-abortion legal regime, there would be penalties (whether civil or criminal) for doctors who perform abortions contrary to the ban, or pharmacies that distribute drugs that cause abortions. This requires, or at least allows for, governmental investigations into the practices of doctors and clinics and pharmacies. A "reproductive police state" is a feature of banning abortion, regardless of what you do with the mother. If Douthat's concern is that he doesn't want to open a criminal investigation every time a woman has a miscarriage, I get that. But if you have a regime where abortion is technically illegal but OB/GYNs know that they have just mark the chart as "miscarriage" and completely shield themselves from scrutiny (to avoid a "reproductive police state"), then they will just do that--which, I suspect, was often the way things were handled pre-Roe. What's accomplished by your abortion ban? Except, counter-intuitively, such a regime will encourage the more mechanical and interventional abortion methods (those generally done later in the gestational cycle) over early, less interventional approaches like drug-based methods. Not to mention it will empower women with access to doctors and medical services over those who don't, which in the United States means people with money. This, once again, was basically the pre-Roe regime, where rich people (like, for example, the Washington Post columnist that Douthat's leads the piece with) can always find a way to do what they want and poor people suffer the effects of the ban.
All of this points to the basic incoherence of advocating, on the one hand, that a fetus has full and unlimited human rights, and on the other that criminal penalties for abortion should be completely off the table. Now, some might look that this incoherence and conclude that people like Mancini and Douthat are dissembling and engaging in PR spin. Under this view, most pro-lifers secretly want to throw women who have abortions in jail, but they understand that this is a polarizing position that diminishes the credibility of their movement (which Douthat alludes to in his piece). Nevertheless behind every seemingly reasonable pro-life face, they might say, lurks a Williamson.
I, however, think the incoherence actually resolves the other way. I think Mancini and Douthat others like them genuinely don't want women to suffer criminal punishment for procuring abortions. They are genuinely horrified at Williamson's comments and point of view. And I think this is because they don't really believe there is no distinction between a fetus and born child. Because the moment you remove that absolute identity of the fetus and the born child, then all of the sudden the incoherence goes away. It is perfectly consistent to argue that, while a fetus does not have a full claim to humanity, it has a lesser claim that is sufficient to justify prohibiting abortion (I made an attempt at such a framework here). But, because the claim of the fetus is less than that of the born child, rather than handling it criminally and punishing the people who cause the death of the fetus, it is simply prohibited via the civil law. Abortion might very well be a "tragedy," as Mancini describes it, but it is not the killing of a human being with full legal rights, and therefore it is not to be treated as such. Likewise, it makes sense to balance the right of the mother to bodily autonomy and decision-making against the right of the fetus to live when you believe that the fetus does not have a full set of human rights, as we don't balance autonomy rights against the right to life in other contexts.
The problem, of course, is that Douthat and the March for Life folks use the rhetoric of "life begins at conception" as their primary talking point. This is done, I believe, because it takes an issue that is objectively and irreducibly complex and situationally-nuanced and reduces it to a black-and-white moral binary. If you say that there is no distinction between a fetus and a two year old, then the moral universe of the abortion issue becomes very simple, because no one save a handful of Edgelord academics (which Douthat, predictably, trots out) think that it is ever OK to kill a two year old. "Life begins at conception" is the ultimate example of seizing the moral high ground, because it paints their opponents as pro-murder. Except, deep down, they don't actually believe that abortion is indistinguishable from murder, because when confronted with the logical and almost inevitable consequences of their philosophical position, they immediately back down.
In embracing the rhetoric but not the consequences, the mainstream pro-life movement empowers people like Williamson. If you don't really believe that the fetus is indistinguishable from a born child and/or you are unwilling to accept the consequences of such a position, then it is irresponsible to say so. Because I think there is no question that someone like Williamson would have no qualms about charging women who have abortions (1/4th of the U.S. female population, by many estimates) for murder, and there is no question that Williamson is not the weird, fringe outlier that many folks want to believe. Notwithstanding the disclaimer of people like Mancini and Douthat, the pro-life movement in the United States as currently constructed would, if allowed free reign, likely criminally punish women who procure abortions to at least some degree. And folks like Mancini and Douthat and those who view the issue in the way they do--the "non-extremists" that Douthat is trying to call out in his piece--are tacitly giving rhetorical and philosophical cover to the criminalization branch of the movement. If "there is no distinction between the fetus and the child" is a mainstream pro-life position, then "women who get abortions should at least go to jail" is inevitably a de facto mainstream position as well.
Williamson proves that you can't have any meaningful debate on the abortion question so long as one side insists that there is no distinction between a fetus and a born child, because that position removes any possible grounds for intermediate positions. Once you cross the "life begins at conception" Rubicon, the only logical outcome that follows is that women who have abortions are murderers and should be treated as such. The fact that the mainstream pro-life movement retreats from this conclusion reflects, not some Solomonic moderation, but a basic discomfort with the rhetorical posture that they have chosen. But there will always be people who are less squeamish than Mancini and Douthat and the purported "non-extremists," and in most things the one willing to say and do what others are unwilling to will carry the day. If the mainstream pro-life movement doesn't want to see people like Williamson around, then it needs to change its rhetorical framing of the pro-life issue. Right now, it is trying to have it both ways and have the maximalist rhetoric while distancing itself from the maximalist consequences.
It is this position that I would like to talk about for a moment. The general response is to declare this an "extreme" position that is outside the bounds of any abortion-related discourse. But, is it? If you read the podcast exchange and strip away the (by Williamson's own admission) inflammatory reference to hanging, Williamson's position is that women who procure abortions should be adjudicated under normal criminal law procedures. Williamson, I presume, believes that this is because there is no philosophical or legal distinction between a fetus and a born child. If you believe that, and the majority of the pro-life movement does (or at least claims to--more on that below), then Williamson's position flows naturally from its premises.
Think of it this way. Imagine a mother goes out and hires a hitman to kill her two-year-old child. Under at least U.S. criminal law, the mother could absolutely be charged as a principal to the murder, and thus would be subject to the maximum penalty for murder in that jurisdiction if convicted. At a minimum, they could be charged under conspiracy or aiding-and-abetting theories, which, while bringing with them lesser punishments (sometimes), are serious criminal charges with extensive sentences. There is almost no scenario under which the mother would not be facing criminal charges under this scenario. Considering all of this, if you believe that there is no distinction between a two year old and a fetus, then there is no real distinction between the hiring a hitman scenario and the procuring an abortion scenario--the woman has gone out and retained some other person to effect the death of the child/fetus. If you think these two are the same, and the first is clearly in the domain of criminal law for the mother, then why isn't the second?
Now, the broader, mainstream pro-life movement has tried very hard to distance itself from this conclusion. Here are the comments from the President of the March for Life, Jeanne Mancini, when then candidate Donald Trump suggested criminal punishment for women who get abortions:
“Mr. Trump’s comment today is completely out of touch with the pro-life movement and even more with women who have chosen such a sad thing as abortion,” said Jeanne Mancini, President of the March for Life Education and Defense Fund. “Being pro-life means wanting what is best for the mother and the baby. Women who choose abortion often do so in desperation and then deeply regret such a decision. No pro-lifer would ever want to punish a woman who has chosen abortion. This is against the very nature of what we are about. We invite a woman who has gone down this route to consider paths to healing, not punishment.”
If that's the case, why doesn't that logic apply to the mother who hires a hitman to take out the two year old? Surely some tragedy occurred that prompted that decision, some measure of desperation that pushed her in that direction. All of the same potential tragic circumstances in the abortion context can be imagined in the hitman context. If "no pro-lifer would ever want to punish a woman who has chosen abortion," does it follow that no pro-lifer would want to punish a mother who in some other desperate situation who decided to kill her child? I find that difficult to believe.
Likewise, look at Ross Douthat's column from Sunday. While the purpose of the column was to engage in whataboutism visa ve the pro-choice movement, he distances himself from Williamson in the following paragraph:
From my own anti-abortion perspective, this opinion makes Williamson an extremist as well. When American laws restricted abortion they generally did not impose such penalties, and today’s pro-life movement likewise generally rejects the idea of prosecuting women. This position often gets cast as inconsistent by pro-choicers, but I think it represents the incorporation by pro-lifers of the points that my pro-choice friends actually get right — that pregnancy is unique in ways that mitigate culpability and make it unwise to treat abortion like a normal homicide, that the government can only go so far in restriction without becoming a reproductive police state — without making the literally fatal mistake of believing these things also require a civil right to kill your unborn child.
So, "pregnancy is unique in ways that mitigate culpability." What ways are those? I mean, parenthood is tough and brings with it all sorts of challenges and obligations that non-parents don't have, but that doesn't translate into reducing culpability if parents kill their children. If anything, the fact that the fetus is literally, physically dependent on the mother for life would make the pregnant woman more responsible for the outcome of the child than another mother, not less. Again, if there is no difference between a fetus and a born child, then there is no reason to treat a pregnant mother any different from a parent.
Douthat then raises prudential grounds, stating that it would "unwise" to treat abortion as homicide to avoid "a reproductive police state." Huh? Presumably under any kind of anti-abortion legal regime, there would be penalties (whether civil or criminal) for doctors who perform abortions contrary to the ban, or pharmacies that distribute drugs that cause abortions. This requires, or at least allows for, governmental investigations into the practices of doctors and clinics and pharmacies. A "reproductive police state" is a feature of banning abortion, regardless of what you do with the mother. If Douthat's concern is that he doesn't want to open a criminal investigation every time a woman has a miscarriage, I get that. But if you have a regime where abortion is technically illegal but OB/GYNs know that they have just mark the chart as "miscarriage" and completely shield themselves from scrutiny (to avoid a "reproductive police state"), then they will just do that--which, I suspect, was often the way things were handled pre-Roe. What's accomplished by your abortion ban? Except, counter-intuitively, such a regime will encourage the more mechanical and interventional abortion methods (those generally done later in the gestational cycle) over early, less interventional approaches like drug-based methods. Not to mention it will empower women with access to doctors and medical services over those who don't, which in the United States means people with money. This, once again, was basically the pre-Roe regime, where rich people (like, for example, the Washington Post columnist that Douthat's leads the piece with) can always find a way to do what they want and poor people suffer the effects of the ban.
All of this points to the basic incoherence of advocating, on the one hand, that a fetus has full and unlimited human rights, and on the other that criminal penalties for abortion should be completely off the table. Now, some might look that this incoherence and conclude that people like Mancini and Douthat are dissembling and engaging in PR spin. Under this view, most pro-lifers secretly want to throw women who have abortions in jail, but they understand that this is a polarizing position that diminishes the credibility of their movement (which Douthat alludes to in his piece). Nevertheless behind every seemingly reasonable pro-life face, they might say, lurks a Williamson.
I, however, think the incoherence actually resolves the other way. I think Mancini and Douthat others like them genuinely don't want women to suffer criminal punishment for procuring abortions. They are genuinely horrified at Williamson's comments and point of view. And I think this is because they don't really believe there is no distinction between a fetus and born child. Because the moment you remove that absolute identity of the fetus and the born child, then all of the sudden the incoherence goes away. It is perfectly consistent to argue that, while a fetus does not have a full claim to humanity, it has a lesser claim that is sufficient to justify prohibiting abortion (I made an attempt at such a framework here). But, because the claim of the fetus is less than that of the born child, rather than handling it criminally and punishing the people who cause the death of the fetus, it is simply prohibited via the civil law. Abortion might very well be a "tragedy," as Mancini describes it, but it is not the killing of a human being with full legal rights, and therefore it is not to be treated as such. Likewise, it makes sense to balance the right of the mother to bodily autonomy and decision-making against the right of the fetus to live when you believe that the fetus does not have a full set of human rights, as we don't balance autonomy rights against the right to life in other contexts.
The problem, of course, is that Douthat and the March for Life folks use the rhetoric of "life begins at conception" as their primary talking point. This is done, I believe, because it takes an issue that is objectively and irreducibly complex and situationally-nuanced and reduces it to a black-and-white moral binary. If you say that there is no distinction between a fetus and a two year old, then the moral universe of the abortion issue becomes very simple, because no one save a handful of Edgelord academics (which Douthat, predictably, trots out) think that it is ever OK to kill a two year old. "Life begins at conception" is the ultimate example of seizing the moral high ground, because it paints their opponents as pro-murder. Except, deep down, they don't actually believe that abortion is indistinguishable from murder, because when confronted with the logical and almost inevitable consequences of their philosophical position, they immediately back down.
In embracing the rhetoric but not the consequences, the mainstream pro-life movement empowers people like Williamson. If you don't really believe that the fetus is indistinguishable from a born child and/or you are unwilling to accept the consequences of such a position, then it is irresponsible to say so. Because I think there is no question that someone like Williamson would have no qualms about charging women who have abortions (1/4th of the U.S. female population, by many estimates) for murder, and there is no question that Williamson is not the weird, fringe outlier that many folks want to believe. Notwithstanding the disclaimer of people like Mancini and Douthat, the pro-life movement in the United States as currently constructed would, if allowed free reign, likely criminally punish women who procure abortions to at least some degree. And folks like Mancini and Douthat and those who view the issue in the way they do--the "non-extremists" that Douthat is trying to call out in his piece--are tacitly giving rhetorical and philosophical cover to the criminalization branch of the movement. If "there is no distinction between the fetus and the child" is a mainstream pro-life position, then "women who get abortions should at least go to jail" is inevitably a de facto mainstream position as well.
Williamson proves that you can't have any meaningful debate on the abortion question so long as one side insists that there is no distinction between a fetus and a born child, because that position removes any possible grounds for intermediate positions. Once you cross the "life begins at conception" Rubicon, the only logical outcome that follows is that women who have abortions are murderers and should be treated as such. The fact that the mainstream pro-life movement retreats from this conclusion reflects, not some Solomonic moderation, but a basic discomfort with the rhetorical posture that they have chosen. But there will always be people who are less squeamish than Mancini and Douthat and the purported "non-extremists," and in most things the one willing to say and do what others are unwilling to will carry the day. If the mainstream pro-life movement doesn't want to see people like Williamson around, then it needs to change its rhetorical framing of the pro-life issue. Right now, it is trying to have it both ways and have the maximalist rhetoric while distancing itself from the maximalist consequences.
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