Abortion should have nothing to do with criminal law

[Tony2255]

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?

Here is another post with good links to Ectopic pregnancy. forums.catholic-questions.org/showthread.php?t=653401

From personal experience. My wife was wrongly diagnosed with an ectopic pregnancy and the doctor tried to push medicine to “handle” the situation. Had we not had doubts and sought alternative treatment we would have ended up killing our daughter. My wife rested and was monitored and the embryo moved into the uterus. We were blessed. There are alternative measures.

Zygote? It’s still a child. The Unborn Victims of Violence Act of 2004 (Public Law 108-212) gpo.gov/fdsys/pkg/PLAW-108publ212/pdf/PLAW-108publ212.pdf

‘‘(d) As used in this section, the term ‘unborn child’ means
a child in utero, and the term ‘child in utero’ or ‘child, who is
in utero’ means a member of the species homo sapiens, at any
stage of development, who is carried in the womb.’’

Sad thing about this Act is that it gives person-hood to a child of any stage, yet restricts the Act being used to prosecute abortion. I guess vacuum aspiration isn’t violent enough.

 

[minkymurph]

Separating the two isn’t as difficult as you think-> godlessprolifers.org/home.html.

Thank you for this link.

Well that’s a difference between UK law and US law. My lack of knowledge that something is a crime does not invalidate the criminality of my act.

It certainly doesn’t, and I know very little about the US legal system.

1. The OP is arguing that abortion shouldn’t be criminal at all.

Which I disagreed with - see post #75.
oldcatholicguy;10482721:

Manslaughter is a criminal charge.

It is. But it is not murder and does not necessarily incur a life sentence. To clarify, what I was discussing with another poster was how criminal law actually works in practice, and the issue in question was if, and only if, abortion is illegal in the country she lives in should it always automatically incur a life sentence, or whether in certain circumstances a woman who has an abortion should be charged with manslaughter as opposed to murder? The other issue on which I was engaged in discussion with other posters is whether or not imposing a life sentence for murder would achieve the intended objective - preventing abortion? Unfortunately, in the course of discussion some of my posts were isolated and interpretations placed on them that were not intended.

1. You need a better example since your current one is based on the “exception to the rule” (unborn children). A more effective example would be were a criminal murders an innocent person unintentionally while murdering another person intentionally. Let’s assume that I murder person A and my intentional murdering of person A directly results in the death of person B. Am I guilty of 2 murders or just 1 murder and 1 manslaughter?

It wasn’t my intention to put it across as an exception to the rule, but rather the rule. As in, the rule of law.

In UK law, unintentional killing is not murder. It is manslaughter. As you say, it is still a crime and manslaughter can incur a life sentence, but not always. Murder always incurs a life sentence.

As such, in the scenario you describe, in UK law, and in the absence of any other evidence, the defendant would more than likely be accused of one count of murder and one of manslaughter. However there is also what is known as the doctrine of transferred malice. Put simply, this means criminal liability can be transferred when the same criminal act is involved. However, it depends on the circumstances.

To explain further - if someone went into a bar with the intention of killing one individual with a gun and just shot the place up in order to achieve that objective and others were killed in the process, they could be charged with more than one count of murder. If they ran someone over in car with the intention of killing them and unintentionally killed someone else, in the second instance it would more than likely be manslaughter.

You may ask how all this is helpful in relation to the thread? It a rare occasion when two cases are identical. As such, the law relies on principles on application and not just fact. A legal difficulty with charging a woman who has an abortion with murder lies in the fact she herself did not commit the murder. The woman could be accused of conspiring to murder, consenting to murder, or being an accessory to murder, but as she herself did not inflict the fatal injury, she has not in the eyes of law committed murder. As such, the one who should be charged with murder is the one who inflicts the fatal injury.

Plea deals really have no bearing on this discussion (and if they are used in a similar manner in the UK as they are here I really wouldn’t try to link them positively with consistency in the law. Plea deals create inconsistency, they don’t promote it)

Plea deals are not used in the same way in the UK and there was no plea deal in the case I used to illustrate the application and operation of criminal law. The charge was reduced to manslaughter on appeal to the Lords - the equivalent of the Supreme Court, who held the prosecution had not met the burden of proof required for a conviction of murder. The defendant still received a custodial sentence. The reason I used this case was to illustrate that while you or I may consider a particular act and act of murder and one that warrants a life sentence, a court may decide otherwise.

 

[oldcatholicguy]

It is. But it is not murder and does not necessarily incur a life sentence. To clarify, what I was discussing with another poster was how criminal law actually works in practice, and the issue in question was if, and only if, abortion is illegal in the country she lives in should it always automatically incur a life sentence, or whether in certain circumstances a woman who has an abortion should be charged with manslaughter as opposed to murder? The other issue on which I was engaged in discussion with other posters is whether or not imposing a life sentence for murder would achieve the intended objective - preventing abortion? Unfortunately, in the course of discussion some of my posts were isolated and interpretations placed on them that were not intended.

1. I disagree with the automatic life sentences in general. The arbitrary nature of such mandatory sentences promotes injustice.
2. The issue of justice aside, I don’t think a mandatory life sentence for the mother would have any positive effect on the issue of abortion or would be in the best interest of justice. I would argue, if we ignore 1, that such a mandatory sentence for the doctor would in theory have a positive effect and be in the best interest of justice.

It wasn’t my intention to put it across as an exception to the rule, but rather the rule. As in, the rule of law.

In UK law, unintentional killing is not murder. It is manslaughter. As you say, it is still a crime and manslaughter can incur a life sentence, but not always. Murder always incurs a life sentence.
The problem here is that abortion is intentional.

As such, in the scenario you describe, in UK law, and in the absence of any other evidence, the defendant would more than likely be accused of one count of murder and one of manslaughter. However there is also what is known as the doctrine of transferred malice. Put simply, this means criminal liability can be transferred when the same criminal act is involved. However, it depends on the circumstances.

To explain further - if someone went into a bar with the intention of killing one individual with a gun and just shot the place up in order to achieve that objective and others were killed in the process, they could be charged with more than one count of murder. If they ran someone over in car with the intention of killing them and unintentionally killed someone else, in the second instance it would more than likely be manslaughter.
Well I disagree with the law then. It does not make sense to me that one can be considered murder and the other manslaughter when both deaths are a direct result of the same action and are products of the same intent. The car scenario makes even less sense to me. A person’s incompetence (as in murdering the wrong person; not as in mentally incompetent) should have no bearing on the fact that they intended to intentionally cause and did cause the death of a person; and should have no bearing on the criminal charge.

You may ask how all this is helpful in relation to the thread? It a rare occasion when two cases are identical. As such, the law relies on principles on application and not just fact. A legal difficulty with charging a woman who has an abortion with murder lies in the fact she herself did not commit the murder. The woman could be accused of conspiring to murder, consenting to murder, or being an accessory to murder, but as she herself did not inflict the fatal injury, she has not in the eyes of law committed murder. As such, the one who should be charged with murder is the one who inflicts the fatal injury.
Under UK law does the above apply to individuals who hire or ask someone to commit murder? If so then I disagree with the law. If I hired or ask someone to commit murder, I’m just as guilty of murder as the person who actually inflicted it. The murder would not have taken place if not for my intentional actions (hiring or asking someone to commit it).

 

[minkymurph]

1. I disagree with the automatic life sentences in general. The arbitrary nature of such mandatory sentences promotes injustice.
2. The issue of justice aside, I don’t think a mandatory life sentence for the mother would have any positive effect on the issue of abortion or would be in the best interest of justice. I would argue, if we ignore 1, that such a mandatory sentence for the doctor would in theory have a positive effect and be in the best interest of justice.

Then we are not too far apart in our thinking.

Well I disagree with the law then. It does not make sense to me that one can be considered murder and the other manslaughter when both deaths are a direct result of the same action and are products of the same intent. The car scenario makes even less sense to me. A person’s incompetence (as in murdering the wrong person; not as in mentally incompetent) should have no bearing on the fact that they intended to intentionally cause and did cause the death of a person; and should have no bearing on the criminal charge.

I can’t say I disagree with you, but that is the way it stands at the moment. For a conviction of murder to be successful the prosecution must prove beyond reasonable doubt the accused intended to kill someone and simultaneously carried that intention out. However, the same sentence can be imposed for manslaughter - 25 years.

Under UK law does the above apply to individuals who hire or ask someone to commit murder? If so then I disagree with the law. If I hired or ask someone to commit murder, I’m just as guilty of murder as the person who actually inflicted it. The murder would not have taken place if not for my intentional actions (hiring or asking someone to commit it).

Hiring someone to commit murder is conspiracy to murder, but still incurs a life sentence. (25 years)

I can understand why you would disagree. The law is not perfect which is why is constantly under review. One of the things I disagree with most in UK law is the fact you are under no obligation to help anyone even when helping them poses no risk. There was a case in England where a small child died from drowning. Two policemen saw the child drowning, but did not help because under the police code of practice they were not permitted to enter the water. In France, they have a ‘Good Samaritan’ law in that you are legally obliged to help someone in distress if helping them poses no personal risk.

Hiring someone to commit murder is conspiracy to murder, but still incurs a life sentence. (25 years)

‘Asking’ someone to commit murder is really good one for me as it was particularly relevant in my part of world prior to the Good Friday Agreement. (I live in the North of Ireland) During the ‘troubles,’ lots of people were ‘asked’ to commit crimes - murder being one of them. When I say ‘asked’ I mean threatened, and threatened with either their own lives or the lives of their family if they refused to cooperate. As such, there were occasions when people were afforded the defense of duress (coercion). However, there is a very strict criterion on which the court must be satisfied; there must be a real and imminent threat of serious harm and sufficient evidence to support the claim. However, it is only a defense to manslaughter. Duress or coercion is never permitted as a defense to murder.

In relation to abortion, what if a woman was at risk from one of these honor killings as a consequence of becoming pregnant? If abortion was categorized as murder and incurred a life sentence, I would say the prosecution would consider reducing the charge to manslaughter and she would be entitled to this defense. I’m proposing this simply because nothing is clear cut which is why I agree with you in regard to automatic life sentences in general.

 

[minkymurph]

Just wanted to add, and I was discussing this earlier in the thread. In UK law, if someone injures a pregnant woman and the unborn child dies as a consequence, it is manslaughter - not murder. In the UK, abortion is unlawful beyond 24 weeks. As such, if woman is more than 24 weeks pregnant I say there is no reason in law why the charge should not be murder. Perhaps that’s one the OP would like to comment on.

 

[ilikepizza1]

Just wanted to add, and I was discussing this earlier in the thread. In UK law, if someone injures a pregnant woman and the unborn child dies as a consequence, it is manslaughter - not murder. In the UK, abortion is unlawful beyond 24 weeks. As such, if woman is more than 24 weeks pregnant I say there is no reason in law why the charge should not be murder. Perhaps that’s one the OP would like to comment on.

Would it still considered manslaughter if the injury that caused the death of the unborn child was within the first 24 weeks of the pregnancy? If so I don’t see how abortion wouldn’t be considered manslaughter as well.

 

[minkymurph]

Would it still considered manslaughter if the injury that caused the death of the unborn child was within the first 24 weeks of the pregnancy? If so I don’t see how abortion wouldn’t be considered manslaughter as well.

Good question. There is much debate surrounding this issue in UK legal circles, and some are of the opinion the law needs to change.

It’s a very complex and sensitive area of law. The best thing for me to do is give you this link. I think you may find it interesting.

lawteacher.net/medical-law/essays/embryo-and-foetal-rights.php

 

[minkymurph]

Forgot to add -

If you do get a chance to scan through the essay, please get back to me as I would love to discuss it. It is very relevant to this thread, as it explains why criminal law is engaged in relation to abortion and why the act can attract criminal liability. As such, we wouldn’t be going off the topic of the thread and we would be discussing the issue from a purely legal perspective.

 

[ahaley]

But, do you really want to impose criminal sanctions on a woman who uses an abortifacient?

Yes, because I find chemical warfare on the unborn unacceptable.

As long as we continue to pussyfoot around these things and say “well, I agree that abortion is killing, but it’s her choice so I shouldn’t say anything”, the inherent right to life of the unborn will continue to be unjustly violated.

Alan

 

[Arandur]

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.

You don’t think medical practitioners should be forbidden from performing abortions as a condition of having a license to operate in medicine?

I don’t think people who get abortions should be put in prison, either. But the sentencing for a criminal act, and other legal matters surrounding it (like practitioners’ licenses) can be adjusted quite a bit. Your argument seems to be based on a non-sequitur from a premise that making abortion illegal would require a certain form of punishment for everyone involved. Not so.

Consider also that in the secular world, legality almost = morality. If it is legal it is okay (morally). That’s what the world perceives.

Law is the moral school of the secular world. While not every aspect of morality should ever be legislated, the major points of morality, those where one person’s actions affect another person directly (and often indirectly, if serious enough), are certainly very often legislated.

Thus not only are things like murder and rape illegal, but also theft (including petty theft of small things), libel, fraud, cheating (on various things), certain practices that are risky (driving too fast, certain medical procedures, certain chemicals), and improper medical practice.

Given these things, why shouldn’t abortion (the murder of another human person, usually accompanied by much emotional and often physical harm to other people involved) be illegal?

 

[seakelp]

Fascinating thread! I’d like to add my thoughts.

First, I think there’s an underlying question: what exactly is the purpose of the criminal law? The two answers commonly given are retribution and deterrence. If those are the goals towards which each criminal law is aimed, then the appropriateness of the law should be evaluated with respect to those two goals.

If abortion were not only illegal, but also criminally sanctioned, would the goals of criminal law be furthered? First, I don’t think that retribution is served by punishing either women who elect to have abortions or doctors who perform them. The former population is already vulnerable, and deserve society’s special care, not it’s opprobrium. The latter population is slightly more problematic, but, I think it’s fair to say that we wouldn’t want to punish abortion doctors.

What about deterrence? Well, first, having an abortion is a fairly drastic step and a serious thing for women to choose. I doubt that criminalizing abortion will prevent them from obtaining abortions. Second, doctors could arguably be deterred, because they have a great deal to lose.

But, query whether non-criminal sanctions might be able to deter doctors as (if not more) ably than the tremendous governmental coercion that is restraint of liberty. Suspension or loss of medical licenses may do as much to deter doctors from performing abortions generally as criminal sanctions would.

In other words, I’m not convinced whatsoever that criminal sanctions should be levied against women who elect to have abortions, or doctors that perform them.

 

[fix]

Does anyone see the grave injustice of not outlawing innocent killing? I mean the baby deserves protection. We have a society that codifies killing innocents. Certainly no Catholic can support legal abortion as the Church states quite clearly it must be illegal.

 

[ilikepizza1]

If abortion were not only illegal, but also criminally sanctioned, would the goals of criminal law be furthered? First, I don’t think that retribution is served by punishing either women who elect to have abortions or doctors who perform them. The former population is already vulnerable, and deserve society’s special care, not it’s opprobrium. The latter population is slightly more problematic, but, I think it’s fair to say that we wouldn’t want to punish abortion doctors.

People deserve to be treated equally under the law and in accordance with their actions. While the vulnerability and intentions of the an individual should of course be taken into account when assessing an individual case , it should not be what defines an action itself as criminal or not.

What about deterrence? Well, first, having an abortion is a fairly drastic step and a serious thing for women to choose. I doubt that criminalizing abortion will prevent them from obtaining abortions. Second, doctors could arguably be deterred, because they have a great deal to lose.

Whether or not a law will entirely prevent certain actions says little about whether or not it should be implemented. Theft is quite common despite it being criminalized; this however would not be an argument for repealing those laws. The question is whether abortions would be reduced by its criminalization, and whether the severity of the act itself warrants punishment.

But, query whether non-criminal sanctions might be able to deter doctors as (if not more) ably than the tremendous governmental coercion that is restraint of liberty. Suspension or loss of medical licenses may do as much to deter doctors from performing abortions generally as criminal sanctions would.

In other words, I’m not convinced whatsoever that criminal sanctions should be levied against women who elect to have abortions, or doctors that perform them.

It really comes down to consistency in the application of the law. If an unborn child/fetus has a right to life then those who deprive them of that right must have criminal sanctions brought against them.

 

[seakelp]

People deserve to be treated equally under the law and in accordance with their actions. While the vulnerability and intentions of the an individual should of course be taken into account when assessing an individual case , it should not be what defines an action itself as criminal or not.

Of course not - but you’re discussing this issue as if there already is a criminal sanction in place. Once a crime is codified, of course the finding of a certain action as falling within the elements of the offense is a factual determination to be worked out in each case without regard for the particular offender’s status.

But the nature of the offender obviously does and should help us decide whether or not something should be criminalized in the first place. Why? Again, because criminal law is sanctioned for two reasons: deterrence and retribution, and in my opinion, neither is serviced in the case of criminalizing abortion.

Whether or not a law will entirely prevent certain actions says little about whether or not it should be implemented. Theft is quite common despite it being criminalized; this however would not be an argument for repealing those laws. The question is whether abortions would be reduced by its criminalization, and whether the severity of the act itself warrants punishment.

Of course not. It’s an old trope that murder is illegal despite the fact that people still murder.

My point is that, on balance, prohibitions on abortion will do little to deter individuals from procuring them. That, plus the special nature of the population affected (women and doctors), indicates that criminalizing abortion is not worthwhile.

It really comes down to consistency in the application of the law. If an unborn child/fetus has a right to life then those who deprive them of that right must have criminal sanctions brought against them.

No, it does not. Protecting the “right to life” is not the aim of the criminal law. How do I know this? Because there are all kinds of homicides we do not prosecute. When some causes a car accident through negligence, there is typically no criminal penalty (unless their conduct rises to a more demanding mens rea, etc.). That’s a kind of homicide that we don’t punish, because the goals of criminal law are not serviced through punishment.

By your logic, anyone deprived of the right to life anywhere should be subject to criminal sanctions simply because they have violated someone else’s right to life, regardless of moral culpability.

And yes, that’s quite consistent. But we’re not aiming for consistency, we’re aiming for justice.

 

[Arandur]

Again, because criminal law is sanctioned for two reasons: deterrence and retribution, and in my opinion, neither is serviced in the case of criminalizing abortion.

When something is illegal, you don’t think people do it less? When something is legal, you don’t think people do it more?

To the secular culture, legality = morality. If it’s legal, it’s okay to do. If it’s not, then it’s not okay (but some may do it anyway).

Criminal law seeks to protect individuals by reducing the amount of crime against them and attempting to redress any harm that can be redressed.

We focus on closing abortion mills because that reduces abortion availability and thus abortion. If no one could legally practice abortion and keep a medical license, there would be vastly fewer abortions. No other “criminal” penalties necessary (save those already in place for doctors who practice without a license).

My point is that, on balance, prohibitions on abortion will do little to deter individuals from procuring them. That, plus the special nature of the population affected (women and doctors), indicates that criminalizing abortion is not worthwhile.

Many crisis pregnancy centers (the pro-life alternatives) get a great majority of their clients from ads that say things like “Thinking about abortion?” or “Unplanned Pregnancy?” And they even include a line that says “abortion alternatives”–but many people just see “abortion” and contact them seeking an abortion.

Their success in providing alternatives to these women seeking abortion is often >80%.

This tells me that many people who are looking for abortion go to what is available.

If abortion is less available, they find alternatives–they don’t find abortion.

So closing abortion providers–by making them illegal–will lead to much less abortion.

No, it does not. Protecting the “right to life” is not the aim of the criminal law. How do I know this? Because there are all kinds of homicides we do not prosecute. When some causes a car accident through negligence, there is typically no criminal penalty (unless their conduct rises to a more demanding mens rea, etc.). That’s a kind of homicide that we don’t punish, because the goals of criminal law are not serviced through punishment.

By your logic, anyone deprived of the right to life anywhere should be subject to criminal sanctions simply because they have violated someone else’s right to life, regardless of moral culpability.

And yes, that’s quite consistent. But we’re not aiming for consistency, we’re aiming for justice.

The law aims for justice. Your example makes no sense at all to me. In fact, it works against your point.

The person who causes a car accident is prosecuted to the extent of their negligence. We have manslaughter laws vs. murder laws (and 3 degrees of that) precisely because we seek justice for the extent of moral culpability.

A death because of a car accident is not penalized if there is no great negligence–it was an accident. A death because of a car accident due to a drunk driver is prosecuted much more harshly, because of that person’s moral culpability.

Why do we do that? To seek justice commensurate with the crime, but also to try to impress the drunk driver to never be so negligent again.

Likewise, make abortion illegal and focus on the providers (because they are not vulnerable like so many of the seekers). Take away licenses, shut down facilities. Penalize offending providers who continue to operate, with repeat offenses (and perhaps later stage abortions) penalized more severely.

At the same time, we should be diverting any funding that would be going towards the providers right now to provide funding for alternatives instead–education, counseling, adoption services, treating the pregnancies, material assistance to the mothers, etc.

 

[manualman]

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

I hope this isn’t too harsh, but statements like this really illustrate what abominable reasoning skills our current educational system produces. When I went to school, reasoning like this couldn’t have passed 5th grade.

EVERY law in existence is an imposition of morality. All of them.

Taxes: There must be a reasonably equitable way for the populace to share the cost of public benefits.
Zoning laws: Your freedom to do what you want on your property has limits when it infringes on what you neighbor has a right to expect to be able to do with HIS property.
Auto Insurance requirements: Those who want the privilege of driving must be responsible enough to be able to pay for damages they might inflict on others.

You name a law, I will explain to you the moral principle it is imposing.

A JUST society orders it’s laws such that the hierarchy of rights is defended. My right to do as I please stops short of where I might decide to deprive you of a more fundamental right. This is why stealing, battery and murder are illegal! Because civil leaders have had better reasoning skill in the past than you do.

Nobody’s rights are infringed upon if you skip mass. If you decide to shoot me with a pistol, somebody’s rights ARE being infringed. It’s utterly basic.

Abortion isn’t wrong simply because somebody arbitrarily declared it to be. Abortion is wrong because an innocent unborn child is a human being (an assertion totally supported by all scientific evidence). Since that child is a human being, intentional killing is murder. Certainly not all people who procure an abortion fully comprehend what they are doing, so if illegal it could be prosecuted as manslaughter. But the abortionist can’t claim emotional clouding of judgement. Those guys know exactly what they are doing and should be treated by the law as hit men (life, no parole).

 

[manualman]

… Because there are all kinds of homicides we do not prosecute. When some causes a car accident through negligence, there is typically no criminal penalty (unless their conduct rises to a more demanding mens rea, etc.). That’s a kind of homicide that we don’t punish, because the goals of criminal law are not serviced through punishment.

By your logic, anyone deprived of the right to life anywhere should be subject to criminal sanctions simply because they have violated someone else’s right to life, regardless of moral culpability.

Who ARE you guys? You seriously don’t think the legal system is capable of differentiating between intentional murder and accidental death? Or are you just spinning a web of sophistry to try to make a simple matter complex?

By YOUR logic, SS concentration camp guards shouldn’t have been prosecuted because they might have honestly believed that Jews weren’t really, truly, fully human beings. Sorry, it’s not credible. Abortionists don’t spend their careers checking the vacuum device to make sure they GOT all the arms, legs, hands, feet, head and torso bits and NOT comprehend what it is that they do.

 

[oldcatholicguy]

First, I think there’s an underlying question: what exactly is the purpose of the criminal law? The two answers commonly given are retribution and deterrence. If those are the goals towards which each criminal law is aimed, then the appropriateness of the law should be evaluated with respect to those two goals.
But, those aren’t the only goals. There are also the concepts of justice and reform.

If abortion were not only illegal, but also criminally sanctioned, would the goals of criminal law be furthered? First, I don’t think that retribution is served by punishing either women who elect to have abortions or doctors who perform them. The former population is already vulnerable, and deserve society’s special care, not it’s opprobrium. The latter population is slightly more problematic, but, I think it’s fair to say that we wouldn’t want to punish abortion doctors.
Yes, the goals or purpose of criminal justice would be furthered. An innocent has been put to death due to no fault of his or her own and due to no crime he or she has committed and for the benefit of others. Off the top of my head criminalizing abortion would address-
-injustice in regards to acts committed against the victim
-injustice in regards to the application of the law being based not on the act, but on the victim (same act + child already born= a crime)
-deterrence of others from committing the same or similar acts
-deterrence (in terms of protection) for the individuals within society in that their condition (here specifically age, health, and physical condition) is not a determining factor in their protection under the law
-retribution (I assume you mean a moral and or just punishment) for the harm caused to the victim and society

The mothers- Unless you are trying to argue that pregnancy is a mental defect or causes women to lose their mental competence to such a degree that they have to be considered minors for the purposes of the law or that the unborn child has committed some sort of crime or act against the woman I fail to see how being vulnerable (which itself can be argued against) or in need of society’s special care has any bearing on this matter. The only valid application of the above I can see is in regards to punishment, not in regards to the question of if their acts should be considered a crime.
The doctors- Why exactly is it fair to say they shouldn’t face criminal charges or that we wouldn’t want to charge them with a crime?

What about deterrence? Well, first, having an abortion is a fairly drastic step and a serious thing for women to choose. I doubt that criminalizing abortion will prevent them from obtaining abortions. Second, doctors could arguably be deterred, because they have a great deal to lose.
Pretty much every felony level (and some non-felony level) crime is a drastic and serious thing. I doubt anyone would argue, successfully, that murder or rape being crimes have no value as a deterrence for these crimes. Or, for that matter, the massive fines one receives for speeding in a school or construction zone, or for littering in Texas (I’ve lived there, you’d be better off throwing your wallet out the window instead of your empty soda can).

But, query whether non-criminal sanctions might be able to deter doctors as (if not more) ably than the tremendous governmental coercion that is restraint of liberty. Suspension or loss of medical licenses may do as much to deter doctors from performing abortions generally as criminal sanctions would.
Can I also assume you believe that a doctor who murders and harvests organs from 1 healthy patient in order to save another patient should only lose his license and not be charged with murder? Would you also argue that a doctor who murders the mother in order to save her viable unborn child from an abortion should only lose his license?

In other words, I’m not convinced whatsoever that criminal sanctions should be levied against women who elect to have abortions, or doctors that perform them.
I’m not very surprised by your conclusion given that not once in your comment you mentioned or even vaguely referenced the third individual involved in an abortion, namely the victim.

 

[oldcatholicguy]

No, it does not. Protecting the “right to life” is not the aim of the criminal law. How do I know this? Because there are all kinds of homicides we do not prosecute. When some causes a car accident through negligence, there is typically no criminal penalty (unless their conduct rises to a more demanding mens rea, etc.). That’s a kind of homicide that we don’t punish, because the goals of criminal law are not serviced through punishment.

By your logic, anyone deprived of the right to life anywhere should be subject to criminal sanctions simply because they have violated someone else’s right to life, regardless of moral culpability.

And yes, that’s quite consistent. But we’re not aiming for consistency, we’re aiming for justice.

Apparently you forgot about the rather important role intent plays in the criminal justice system.

 

[seakelp]

When something is illegal, you don’t think people do it less? When something is legal, you don’t think people do it more?

To the secular culture, legality = morality. If it’s legal, it’s okay to do. If it’s not, then it’s not okay (but some may do it anyway).

Incorrect. This is a common misconception. The law does not act as a moral placeholder for society: it acts to direct human action to goods it thinks are socially desirable. Yes, there is overlap between what is “moral” and what is legal. But to say that law is “morality for the secular culture” is fallacious.

I’d direct your attention to most modern legal theory on this point, at least in common law countries.

Criminal law seeks to protect individuals by reducing the amount of crime against them and attempting to redress any harm that can be redressed.

Yes. This is what I said when criminal law has two goals: retribution and deterrence.

We focus on closing abortion mills because that reduces abortion availability and thus abortion. If no one could legally practice abortion and keep a medical license, there would be vastly fewer abortions. No other “criminal” penalties necessary (save those already in place for doctors who practice without a license).

Agreed. This was one of the options I made reference to when I suggested non-criminal penalties may do as much to deter abortion as criminal ones.

Many crisis pregnancy centers (the pro-life alternatives) get a great majority of their clients from ads that say things like “Thinking about abortion?” or “Unplanned Pregnancy?” And they even include a line that says “abortion alternatives”–but many people just see “abortion” and contact them seeking an abortion.

Their success in providing alternatives to these women seeking abortion is often >80%.

This tells me that many people who are looking for abortion go to what is available.

If abortion is less available, they find alternatives–they don’t find abortion.

So closing abortion providers–by making them illegal–will lead to much less abortion.

I think you are confusing “illegality” with “criminal sanctions.” Again, I never suggested abortion shouldn’t be illegal. I simply think there are non-criminal alternatives.

In fact, all the ones you suggested are exactly what I was thinking of, and mentioned in my original post. I think you and I actually agree quite a bit, save your apparent misunderstanding (an understandable one if you are not a lawyer) between “illegal” and “criminal.”

The law aims for justice. Your example makes no sense at all to me. In fact, it works against your point.

The person who causes a car accident is prosecuted to the extent of their negligence. We have manslaughter laws vs. murder laws (and 3 degrees of that) precisely because we seek justice for the extent of moral culpability.

It varies from state to state, but yes.

A death because of a car accident is not penalized if there is no great negligence–it was an accident. A death because of a car accident due to a drunk driver is prosecuted much more harshly, because of that person’s moral culpability.

Correct. Hence me reference to mens rea in my original post.

Why do we do that? To seek justice commensurate with the crime, but also to try to impress the drunk driver to never be so negligent again.

Yes. This was my point, discussed above, concerning the aim of criminal law: retribution and deterrence.

Likewise, make abortion illegal and focus on the providers (because they are not vulnerable like so many of the seekers). Take away licenses, shut down facilities. Penalize offending providers who continue to operate, with repeat offenses (and perhaps later stage abortions) penalized more severely.

Yes. This would happen if abortion were illegalized, regardless of whether it were criminalized.

At the same time, we should be diverting any funding that would be going towards the providers right now to provide funding for alternatives instead–education, counseling, adoption services, treating the pregnancies, material assistance to the mothers, etc.

I couldn’t think of anything more rational, yes.

In sum, you agree 100% with what I originally stated (aside from your insistence that law = morality, which it does not). Perhaps I stated my point ungracefully at first (mea cupla), I hope you are now more fully aware of my position.