Abortion should have nothing to do with criminal law

[Brendan]

Criminal laws are not a response to objective immorality. History is littered with immoral laws.

The Church exists to articulate morality, not the state.

They often are not, but, from a Catholic perspective, they SHOULD be. As Aquinas noted, The purpose of civil law is to make manifest the Natural Law,

We see that again in Romans 13:3-4

For rulers are not a cause of fear to good conduct, but to evil.b Do you wish to have no fear of authority? Then do what is good and you will receive approval from it, 4for it is a servant of God for your good. But if you do evil, be afraid, for it does not bear the sword without purpose; it is the servant of God to inflict wrath on the evildoer

No, states do not enforce morality, states enforce laws, which may or not be moral.

The very concepts of what is Good and what are Evil are determined by Natural Law, an objective reality. In other words, you confirmed our point. The Church determines Morality (makes known what is good and what is evil) and it falls to the civil authority to act upon that.

The civil law, being binding upon all, it thus based on the Natural Law, which is likewise binding upon all.

What determines if a civil law is just or not is entirely based on it’s correlates with the Natural Law, as Justice is not just a concept, but God Himself is Justice.

Thus, if we seek to have a society built on Just laws, we must, by definition, seek a civil law that is based on Divine Natural Law.

 

[ahs]

,
I mention ths because by invoking law you are invoking state power. Law without state power is meaningless.

I’ll also say this: relying on law, i.e., the state, to enforce morality is a very dangerous game.

Why can’t I invoke state power to protect the most innocent and vulnerable humans?

By the way, can you please answer this…this is the 4th time I’ve asked:

Do you believe that unborn babies don’t need the same protection as the mothers who carry them? If we exempt the unborn, who are most vulnerable, from legal protection, then why bother protecting the mothers, who are not as vulnerable, who carry them?

 

[pennsylvan]

Do you think that state power is illegitimate? I’m sensing a semi-libertarian vibe from your posts.

Some state power is legitimate, some isn’t. There is a difference between Kim Jong-un and Barack Obama.

What is clear to me is that the state is not a good vessel for the promotion of morality.

I think you’re detecting cynicism not libertarianism.

 

[Bezant]

Do you think the Church can effectively makes its case against abortion without reliance on state power?

Actually, that’s a fair point. Most Western countries legalised abortion decades ago, so the Church has had to do that without state power.

 

[StudentMI]

Some state power is legitimate, some isn’t. There is a difference between Kim Jong-un and Barack Obama.

What is clear to me is that the state is not a good vessel for the promotion of morality.

I think you’re detecting cynicism not libertarianism.

My bad. Sorry.

I wonder, though, if laws are not founded on morality what are they founded on? If rights, where do rights come from?

 

[mymamamary]

There’s the heart of it.

No, states do not enforce morality, states enforce laws, which may or not be moral.

I believe Jesus Christ established the Church to point the way, not simply to morality,but to Him. He did not come to enforce but to invite.

As in everything, we have the choice.

I agree. I also Agree that we have the choice. However, the State has to keep morality, otherwise we end up like Communist Russia.

 

[pennsylvan]

Why can’t I invoke state power to protect the most innocent and vulnerable humans?

By the way, can you please answer this…this is the 4th time I’ve asked:

Do you believe that unborn babies don’t need the same protection as the mothers who carry them? If we exempt the unborn, who are most vulnerable, from legal protection, then why bother protecting the mothers, who are not as vulnerable, who carry them?

You can but you’d best be careful. Will you sacrifice a mother for an ectopic zygote? Which side will state power come down on?

There is little black and white when morality and state power is combined.

Which brings me to your question.

I assume you mean both the mother and the child’s right to life should have equal protection. In principle, I agree. In practice, not so simple. In the example, which of the two should live and which should die according to the law?

 

[minkymurph]

Civilly, there is no right to life until birth.

Theologically, God does not require a state to do His will.

I would agree that theologically God does not require a state to do His will.

The questions I would pose are: 1) Should abortion carry an automatic prison sentence and if so, how long? 2) Should states that have capital punishment impose the death penalty for abortion? 3) Should the offender be afforded any form of defence?

My reasoning on this issue is as follows: There are crimes that warrant punishment, but justice is not solely about retribution. Society incarcerates people who commit murder not solely for the purpose of punishing or retribution, but because such people are likely to continue to pose a serious risk to society. They are incarcerated in order to prevent them from committing further crimes.

People are not always incarcerated for manslaughter. There are occasions when society will not condone manslaughter, but excuse it in certain circumstances. That does not mean the person goes unpunished altogether, but they will not necessarily receive a prison sentence. If a defence to a particular crime is not permitted under any circumstances, then an absolute crime has been created and legislators are extremely reluctant to create an absolute crime for very good reasons - two of them being jury’s are less likely to find people guilty and the judges hands are tied in terms of sentencing. It also raises questions of proportionality and a fair trial.

Taking all these things into account:

If the answer to the first question is yes, then it needs to be determined how long that sentence should be, if the sentence is proportionate to other crimes, and what defences should be permitted to avoid the creation of an absolute crime?

Of course the abortion to carry a prison sentence it would need to be an unlawful in the first place.

 

[R_C]

Abortion is murder, and murder must always be illegal.

It’s not a matter of “choice” but of defending the life of the unborn.

We won’t convince people that abortion is wrong by making it illegal, but we cannot accept the murder of the unborn as a noncriminal act.

 

[Christianus_Dei]

People are being killed unjustly. That is something the law is supposed to stop. It’s not a religious matter. If you think about it, abortion is illegal, but the law doesn’t recognize the science of embryology.

In the case of choosing the life of the child or mother, it is wrong to commit evil that good may come out, so an abortion is not applicable. However, it is morally alright to commit a good action that has the side effect of the child’s death, so long as that good action is directed to an equally good act. It’s the law of double effect.

I believe abortion doctors should be treated under law the same as contract killers–which is what they are. For the mothers, there are varying degrees of stress and duress that would have to be taken under consideration.

 

[ahs]

You can but you’d best be careful. Will you sacrifice a mother for an ectopic zygote? Which side will state power come down on?

A surgery to save a woman with an ectopic pregnancy has the intent to save life, not take it. The intent is not to end the life of the unborn, but to save the life of the mother, with the unfortunate consequence of the baby dying. I believe that laws can be written to take into account intent.

Abortion, on the other hand, has the intent to end the life of the baby…exactly the same way that killing a man in murder has the intent to end the life of that man. I believe that laws should be in place to protect the unborn babies from this intentional act of the will.

There is little black and white when morality and state power is combined.

Which brings me to your question.

Right…except you still have not answered it. For a 5th time I ask:

Do you believe that unborn babies don’t need the same protection as the mothers who carry them? If we exempt the unborn, who are most vulnerable, from legal protection, then why bother protecting the mothers, who are not as vulnerable, who carry them?

I assume you mean both the mother and the child’s right to life should have equal protection. In principle, I agree. In practice, not so simple. In the example, which of the two should live and which should die according to the law?

Yes, I believe both mother and child should have equal rights to life. I am not concerned with whether it is a simple matter or not. In the scenario, each should have a right to life, I believe, even though there will be occasions when a decision must be made one way or the other. In these cases, the law can take into account “intent”. (See my explanation above.)

Now, please answer my question (bolded for you above), as I have addressed yours.

 

[fix]

The Wade in Roe v. Wade was the District Attorney.

I do not think abortion should be subject to criminal penalties, which means it must perforce be legal.

This in no way contradicts the essential moral wrong inherent in abortion.

There are far better ways to teach on abortion than by rattling the bars of jail cells.

The law is a teacher. Teach that murder is legitimate and you get more of it. Not to mention children have rights.

 

[The_Bucket]

I would agree that theologically God does not require a state to do His will.

The questions I would pose are: 1) Should abortion carry an automatic prison sentence and if so, how long? 2) Should states that have capital punishment impose the death penalty for abortion? 3) Should the offender be afforded any form of defence?

My reasoning on this issue is as follows: There are crimes that warrant punishment, but justice is not solely about retribution. Society incarcerates people who commit murder not solely for the purpose of punishing or retribution, but because such people are likely to continue to pose a serious risk to society. They are incarcerated in order to prevent them from committing further crimes.

People are not always incarcerated for manslaughter. There are occasions when society will not condone manslaughter, but excuse it in certain circumstances. That does not mean the person goes unpunished altogether, but they will not necessarily receive a prison sentence. If a defence to a particular crime is not permitted under any circumstances, then an absolute crime has been created and legislators are extremely reluctant to create an absolute crime for very good reasons - two of them being jury’s are less likely to find people guilty and the judges hands are tied in terms of sentencing. It also raises questions of proportionality and a fair trial.

Taking all these things into account:

If the answer to the first question is yes, then it needs to be determined how long that sentence should be, if the sentence is proportionate to other crimes, and what defences should be permitted to avoid the creation of an absolute crime?

Of course the abortion to carry a prison sentence it would need to be an unlawful in the first place.

This is well said. I would not go so far as to say abortion is always murder. Or even usually murder. Murder implies premeditation and/or specific intent. Or at least intentional reckless behavior. I think there are plenty of circumstances where abortion is something women are coerced into or choose out of fear. Fear of discovery, fear of judgment, fear of poverty, etc. My wife knows of a specific instance where, years ago, a 15-year-old acquaintance of hers was forced into an abortion by her own mother. Her mother drove her to the clinic, took her into the office and told her she was going to have an abortion and there was nothing she could do about it. Is that murder? Hardly. At least not on the part of the girl.

Abortion is, however, homicide. There are various punishments for homicide and sometimes, as the previous poster noted, there are none. When homicide is justifiable due to self-defense, there is no punishment and no crime has occurred. I’d argue that there was no sin committed by the 15 year-old my wife knew. Her mom? That’s a different story.

Abortion is less clear-cut in terms of visibility, knowledge, etc. Yes it’s homicide, but not everyone who has one actually knows that. Some truly buy into the whole “it’s just a mass of cells” bit.

Honestly, I think the best way to make abortion illegal is simply to make it illegal to set up abortion clinics. If Roe v. Wade is overturned, then some states will simply make it impermissible to have abortion clinics. Criminal prosecution of women who choose abortion is not really the way to go if we want to stop it. Criminal prosecution of the “doctors,” however, is probably a good idea. Banning herbs and drugs that cause early intentional miscarriage is another good solution. And if some women go so far as to give themselves an abortion via more grotesque methods… I think it’s clear that those women need psychiatric care. Prolonged psychiatric care.

 

[fix]

EVANGELIUM VITAE:

The moral gravity of procured abortion is apparent in all its truth if we recognize that we are dealing with murder and, in particular, when we consider the specific elements involved. The one eliminated is a human being at the very beginning of life. No one more absolutely innocent could be imagined. In no way could this human being ever be considered an aggressor, much less an unjust aggressor! He or she is weak, defenceless, even to the point of lacking that minimal form of defence consisting in the poignant power of a newborn baby’s cries and tears. The unborn child is totally entrusted to the protection and care of the woman carrying him or her in the womb. And yet sometimes it is precisely the mother herself who makes the decision and asks for the child to be eliminated, and who then goes about having it done.

 

[fix]

This is what is happening also at the level of politics and government: the original and inalienable right to life is questioned or denied on the basis of a parliamentary vote or the will of one part of the people-even if it is the majority. This is the sinister result of a relativism which reigns unopposed: the “right” ceases to be such, because it is no longer firmly founded on the inviolable dignity of the person, but is made subject to the will of the stronger part. In this way democracy, contradicting its own principles, effectively moves towards a form of totalitarianism. The State is no longer the “common home” where all can live together on the basis of principles of fundamental equality, but is transformed into a tyrant State, which arrogates to itself the right to dispose of the life of the weakest and most defenceless members, from the unborn child to the elderly, in the name of a public interest which is really nothing but the interest of one part. The appearance of the strictest respect for legality is maintained, at least when the laws permitting abortion and euthanasia are the result of a ballot in accordance with what are generally seen as the rules of democracy. Really, what we have here is only the tragic caricature of legality; the democratic ideal, which is only truly such when it acknowledges and safeguards the dignity of every human person, is betrayed in its very foundations: “How is it still possible to speak of the dignity of every human person when the killing of the weakest and most innocent is permitted? In the name of what justice is the most unjust of discriminations practised: some individuals are held to be deserving of defence and others are denied that dignity?” 16 When this happens, the process leading to the breakdown of a genuinely human co-existence and the disintegration of the State itself has already begun.

 

[fix]

I’ll play your game. Arrest people who miss Mass.

How is that related?

 

[fix]

For that reason, abortion must be a criminal penalty–simply because it is murder.

Indeed, as common sense and the Church both demand.

 

[SamH]

The Wade in Roe v. Wade was the District Attorney.

I do not think abortion should be subject to criminal penalties, which means it must perforce be legal.

This in no way contradicts the essential moral wrong inherent in abortion.

There are far better ways to teach on abortion than by rattling the bars of jail cells.

How do you feel about punishment for other murders?

 

[ephesians4]

As to your example, murder itself is a term of criminal law. As to the reality, there is very little in common between a woman terminating her abortion and a murderer.

That’s part of the problem, the rhetoric.

In reality, there is almost nothing separating them.

Now abortion can be, like some other forms of killing and murder, a morally complex thing. Therefore there is a number of possible situations to consider.

If, however, you murder someone so that you can live a more pleasurable or convenient life, what can be said to justify that?

There is only one argument which can be used to suggest it is not murder, the non-human human argument, that has been already been used to justify mass murder, persecution and mistreatment everywhere from (I invoke Godwin) to Stalin’s Russia, to slavery in the USA.

In general if there is a concern among some proportion of the population about mass murder, and the argument put forward by the state or “experts” is that the people being killed are not human anyway so it doesn’t count, you can pretty much bet that it will be seen as mass murder in the fullness of time. I would prefer not to be on the “they don’t count as human” side of the argument, myself.

 

[minkymurph]

Abortion is less clear-cut in terms of visibility, knowledge, etc. Yes it’s homicide, but not everyone who has one actually knows that. Some truly buy into the whole “it’s just a mass of cells” bit.

This is one of the legal problems in terms of imposing a custodial sentence on the woman. In the eyes of the law, it would be disproportionate to impose the same penalties on a person who is fully culpable and one who is not. If a person is not fully aware of the seriousness of the action or the consequences, then they have a defense.

I don’t know how the law works in other parts of the world but in my country, if an unborn child dies as a consequence of an assault on the mother, it is categorized as manslaughter not murder. If the mother dies it is murder. This also presents a problem in terms of proportionality. If a person can assault an obviously pregnant woman but is charged with manslaughter if the unborn child dies, then if would be disproportionate to charge a woman who has an abortion with murder.

Honestly, I think the best way to make abortion illegal is simply to make it illegal to set up abortion clinics. Criminal prosecution of women who choose abortion is not really the way to go if we want to stop it. Criminal prosecution of the “doctors,” however, is probably a good idea. Banning herbs and drugs that cause early intentional miscarriage is another good solution. And if some women go so far as to give themselves an abortion via more grotesque methods… I think it’s clear that those women need psychiatric care. Prolonged psychiatric care.

This is an interesting comment as such a bill is currently under debate in my country. A private abortion clinic was set up in Belfast. Questions were raised concerning the legality of the clinic which claimed they were operating within the law. The fact the recent bill to make it illegal to set up a private abortion clinic has been proposed is an indication they are. Otherwise it would simply have been shut down. Politicians have avoided the morality arguments surrounding abortion in that it has been proposed - in short - it is better for women to be treated within the NHS rather than a profit-driven establishment. Mind you, it has sparked a very intense debate and politicians are at logger heads.

However, all this said there is nothing to prevent them travelling to a neighboring country or state in order to obtain an abortion, and I don’t see how the state could impose a custodial sentence if the act in question is carried out in country were it is lawful. In addition, imposing a ban on travelling to another country or state in order to obtain an abortion is an unpalatable option in a modern democracy. As such, I don’t think criminal prosecution of women who choose abortion would serve the objective. I would be of the opinion abortion is more likely to be prevented if woman receive the support they need.