Abortion should have nothing to do with criminal law

[seakelp]

Who ARE you guys?

I’m a law student studying criminal law, as a matter of fact. Not that that in and of itself gives my points any particular credence, but yes, I do know quite a lot more about the criminal law than most non-lawyers.

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?

Well, I did go to Jesuits schools, and I am studying to be a lawyer, so I’d say the latter.

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.

Not at all. I think you misunderstood my point too greatly for me to respond fully. So, I’ll simply try and restate what I intended to convey in my first post again:

1. Abortion should be illegal.
2. But, abortion should not be criminalized.
3. The reason abortion should not be criminalized is because criminalizing abortion would serve neither purpose of the criminal law, at least to the extent that non-criminal legal remedies would in equal (if not greater) measure.
4. What is the purpose of criminal law? Actually, there are two: retribution and deterrence.

4.1. The retribution rationale states that certain acts should be punished by the criminal law because society seeks revenge on the offender.

4.2. The deterrence rational states that certain acts should be punished in order to deter 1) the specific offender by punishing him / her directly; and 2) all individuals in society by showing them that the law will not tolerate certain kinds of behavior. As people see that certain acts are punished, and as they realize that they do not want to be punished, they will cease to engage in the criminalized acts.

1. Criminalizing abortion does not serve the deterrence rationale. Individual deterrence does not apply because mothers do not (generally) undertake the choice to abort their pregnancy lightly. General deterrence applies in the same way. In addition, non-criminal avenues of deterrence will likely be more successful than criminal ones. If the social good to be obtained can be obtained without the tremendous coercion of incarceration and criminal prosecution, that means should be chosen. Therefore, criminalizing abortion does not serve the deterrence rationale.

5.1. With respect to doctors, deterrence may well apply. But again, given that there are a variety of non-criminal penalties that would do equally well to deter doctors from performing abortions, criminal deterrence is unnecessary.

1. Criminalizing abortion does not serve the retribution justification. A mother who obtains an abortion should not be punished: she should be consoled.
2. With respect to doctors, the retribution also applies slightly more than it does to women. But again, given alternatives that also equally serve society’s need for retribution, criminalizing abortion is unnecessary.

 

[mark_a]

1. But, abortion should not be criminalized.

Priests-for-life agrees that women seeking abortions should not be prosecuted, but people who perform abortions should.

 

[seakelp]

But, those aren’t the only goals. There are also the concepts of justice and reform.

Quite true. But those aspects generally refer to justifications for punishment, not for criminalizing behavior.

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.

First, yes, I do refer to a “just punishment” with regard to retribution. Again, I’m not entirely convinced that 1) criminalizing abortion actually would address any of the propositions you identified, or in the alternative, that if criminalizing abortion actually did, there are not 2) non-criminal remedies that would do just as much, if not more, to obtain the social good we want (fewer abortions).

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.

It absolutely does. It’s a significant consideration.

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?

Again, I think that they could be sufficiently deterred and “punished” using non-criminal avenues.

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).

Fair enough. Nevertheless, I think that abortion is significantly different from the examples you listed, partially stemming from the fact that it is always premeditated. Also, it would always require a conspiracy.

My point isn’t that the deterrence rationale wouldn’t be served entirely: no doubt women WOULD be deterred to some extent if abortion were criminalized. I just question whether, on balance, the actual good to be obtained through criminalization is worth the cost to society in general, especially in light of what would presumably less costly and more just alternatives.

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?

No, you may not.
oldcatholicguy;10490573:

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?

No, I would not.

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.

Okay.

EDIT: to fix code.

 

[seakelp]

Priests-for-life agrees that women seeking abortions should not be prosecuted, but people who perform abortions should.

Fair enough. I’m willing to admit, as I did above, that not punishing doctors through criminal law is harder to justify (or more appropriately, the inverse: that punishing doctors through criminal is easier to justify).

 

[marymary1975]

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.
.

Where in the world did you came out with these??? I only read this part and I am in shock. If you know so much criminal law per your wording how come you don’t know what “INVOLUNTARY MANSLAUGHTER is??” That is the criminal charge for people who negligently kill others: car accidents, etc. You are going to excuse me but don’t talk about something that you have no idea what you are talking

 

[seakelp]

Where in the world did you came out with these??? I only read this part and I am in shock. If you know so much criminal law per your wording how come you don’t know what “INVOLUNTARY MANSLAUGHTER is??” That is the criminal charge for people who negligently kill others: car accidents, etc. You are going to excuse me but don’t talk about something that you have no idea what you are talking

Actually, marymary1975, you are quite wrong: involuntary manslaughter typically requires a mens rea of gross negligence, not “mere” negligence that we see as the basis for most tort law. That’s obviously what I was referring to in my post.

Unfortunately, many people have not encountered these types of subtleties that exist in law. With that in mind, I will take your shock and, I might say, somewhat off-putting post without offense: so yes, I will excuse you.

God bless!

 

[Arandur]

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.

I think you misinterpreted what I was saying. I was not trying to say that educating society about morality is the intended purpose of law. I was saying instead that it is a side effect; our secular culture recognizes no morality except law (and manualman has stated correctly that ALL law is based on morality and is some imposition of value judgments).

You seem pretty intellectual and so I don’t know how often you converse with people who are completely the opposite. In my experience, the majority of people today do not think very deeply for very long about anything of real consequence. In discussions about morality with them, their standard almost always relies upon what is legal.

You can see that viewpoint written into most of our media. People think that if something is legal then it is most likely moral. This simply goes to show that what we allow to be legal, and the severity of how we punish illegal or criminal actions, has a very large sociological influence on our culture’s perception of right and wrong.

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.

At some point, non-criminal violations must escalate to criminal ones. Practicing medicine without a license carries more severe penalties than simply not having a license. Repeated offense or greater degrees of fraud carry greater penalties. So criminal law is always backing up “non-criminal alternatives” at some point.

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.”

I’m not a lawyer, but I did get your distinction from your first post (which is why I got into the licensing discussion). I just lack precision in my use of words regarding legal subjects.

I do think we agree–though based on the tone of your arguments, I think I’d be much more likely to support criminal penalties than you would. I don’t see a problem with criminal penalties for abortion practitioners. I don’t think that such penalties would find their way into law very quickly, but eventually I think they would make sense, as would even some criminal penalties for the mothers who are repeat offenders making the decision for lifestyle choices (e.g., the many affluent women who use abortion as a form of secondary birth control).

I’m not about punishing desperate women, however. We will only make our society come to its senses with love and mercy in addition to justice; justice alone will not win hearts.

 

[minkymurph]

I’m not about punishing desperate women, however. We will only make our society come to its senses with love and mercy in addition to justice; justice alone will not win hearts.

Sorry for jumping in - I know you addressed this to another poster.

This is where I was coming from. I’m not about punishing desperate women. Society punishes people because their actions are so severe they warrant punishment, but punishment is only one element of imposing a custodial sentence.

In my PO the only people who should be incarcerated are people who pose a serious and immediate risk to society and likely to re-offend. As such, they are incarcerated to protect society and to reform the offender so they commit no further crimes.

Incarcerating a woman who has had an abortion is a bit like closing the stable door after the horse had bolted - the child has been aborted. That is not to say an act that is defined in law as a crime should not attract anycriminal liability. However, as with all crime of a serious nature prevention is better than cure and in order to prevent crime is it necessary to consider the cause of the crime. We cannot assume everyone who commits a crime does so because they are bad people who know full well what they are doing and don’t care. Some people commit crimes for that reason, but it cannot be assumed everyone does.
To explain - if the crimes homicide, assault, robbery or theft can be directly linked to, for example, poverty or drug addiction, then preventing crime means addressing these problems.

We also need to be realistic and deal with the situation as it is, not how we would like it to be. Incarcerating those who commit crimes is not always in the public interest as it imposes considerable financial burdens on the taxpayer. In addition, politicians don’t like proposing legislative bills that will be hugely unpopular and likely to be defeated as they may find themselves out of office - and politicians don’t like being out of office. As such and in my view, a desire to see a life sentence imposed on women who have abortions and doctors who perform them is unlikely to be successful and thus, unrealistic.

 

[ahs]

…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.

You seem to take on the same position of the OP. Since he would not return to answer this, perhaps you will…
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?

 

[minkymurph]

You seem to take on the same position of the OP. Since he would not return to answer this, perhaps you will…
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 know this was addressed to another poster and sorry for jumping in. However, people approach problems from different perspectives and I think I can understand seakelps position.

I appreciate that in different countries legislation differs and I am approaching this issue from UK law. Firstly I would say I think abortion should be illegal. I cannot reconcile myself with the idea that prior to 24 weeks, which is the threshold for elective abortion in the UK, the unborn child is not human and not entitled to the protection of the law. Many a secularist I have spoken to does not disagree with this. What people disagree on is to what extent the state should go to in relation to legislating on elective abortion and how those who contravene that legislation should be dealt with by the penal system.

I do not agree with the OP’s position that abortion should have nothing to do with criminal law. Irrespective of your stance on abortion, it does engage criminal law as abortion, must be carried out lawfully. If it is not carried out lawfully then like any other unlawful act it is subject to criminal liability. An abortion that is carried out lawfully cannot incur criminal liability as it is not a crime, irrespective of the fact some people think it should be.

I do not advocate automatic life sentences for doctors who perform abortions and women who have them, and I have outlined reasons in previous posts. Elective abortion is unlawful in my country. It is only permitted if the mother’s life is in danger and a very strict criterion is applied in determining that, but it contravening legislation does not automatically incur a life sentence.

In addition, thousands of woman travel to England to have abortions as elective abortion is legal in England. As such, not only do they not incur criminal liability but the unborn are not protected.

 

[seakelp]

You seem to take on the same position of the OP. Since he would not return to answer this, perhaps you will…

Do you believe that unborn babies don’t need the same protection as the mothers who carry them?

Basically, yes.

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’m not proposing that we do.

 

[The_Blunt_Brig]

The Catechism of the Catholic Church, which Pope Jon Paul II said is “a sure norm for teaching the faith” says unborn humans must be protected by law:

2273 The inalienable right to life of every innocent human individual is a constitutive element of a civil society and its legislation:

"The inalienable rights of the person must be recognized and respected by civil society and the political authority. These human rights depend neither on single individuals nor on parents; nor do they represent a concession made by society and the state; they belong to human nature and are inherent in the person by virtue of the creative act from which the person took his origin. Among such fundamental rights one should mention in this regard every human being’s right to life and physical integrity from the moment of conception until death."80

"The moment a positive law deprives a category of human beings of the protection which civil legislation ought to accord them, the state is denying the equality of all before the law. When the state does not place its power at the service of the rights of each citizen, and in particular of the more vulnerable, the very foundations of a state based on law are undermined. . . . As a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child’s rights."81

 

[minkymurph]

The Catechism of the Catholic Church, which Pope Jon Paul II said is “a sure norm for teaching the faith” says unborn humans must be protected by law:

While I personally agree I see two legal problems:

The first one is, being realistic, western democracies don’t legislate on the basis of what is taught in the CCC. As such, a proposal calling for abortion to be unlawful is unlikely to succeed in western democracy if the reasoning and principles behind it are reliant on what is taught in the CCC. I don’t think anyone, irrespective of their religious persuasion, is of the opinion the state should not protect the unborn at all. What people disagree on is to what extent.

The second problem is the CCC as quoted uses the phrase ‘appropriate’ penal sanctions. Not everyone agrees on what is ‘appropriate’ and people disagree as to what extent the Catholic Church, or any other religious organization for that matter, should influence the state and the construction of legislation.

 

[manualman]

seakelp, you seem like a smart guy, but you are committing the most basic failure of smart guys: failure to zoom out once in a while to check the big picture. When you get mired in the intellectual details, you can eventually rationalize anything you want to. Maybe this is why regular folks so frequently despise lawyers. Learn to do this frequently and you’ll avoid that fate in life.

In this case, what you have failed to do is to zoom out and consider that your proposal places unborn children in a de facto “less human” category under the law than other humans. That’s a dead giveaway that in your arguments, you’ve outsmarted yourself.

Look up Susan Kennedy Smith. She killed her kids, but made the mistake of doing so AFTER they were born. Nevertheless, she did it at the end of a long and tortuous series of life events. By the logic you propose, what she did shouldn’t be criminalized either.

I’ll freely admit to not being a lawyer and being ignorant of certain legal details. But even a simpleton like me is able to see that a status in law in which the intentional killing of innocent human beings is NOT criminal is a broken legal status.

 

[fix]

that a status in law in which the intentional killing of innocent human beings is NOT criminal is a broken legal status.

Exactly. If the law codifies intentional killing of innocents we have a tyranny. People talk about the mothers and abortionists what about the children? Who defends their right to life?

 

[Stephen168]

Civilly, there is no right to life until birth.

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

You require a state to do your will.

 

[fix]

Civilly, there is no right to life until birth.

Says one who is already born.

 

[ahs]

Basically, yes.

I’m not proposing that we do.

Oh, so you don’t believe that either the parent or the child should be protected necessarily. (And by this, I am speaking of protection in terms of a right to life, protection from homocide, since the thread topic is about abortion.) In this case, no, I don’t think you hold the same position as the OP.

 

[seakelp]

seakelp, you seem like a smart guy, but you are committing the most basic failure of smart guys: failure to zoom out once in a while to check the big picture. When you get mired in the intellectual details, you can eventually rationalize anything you want to. Maybe this is why regular folks so frequently despise lawyers. Learn to do this frequently and you’ll avoid that fate in life.

First, I apologize for taking so long to respond to this thread, and hope I’m not necro-ing.

You’re probably right, at least with regard to why people hate lawyers (I don’t consider myself all that smart - just very lucky to have had great teachers in my life). But, as an aside, I think you’re also correct with regard to “keeping things simple.” I admit that I sometimes might lose the forest for the trees. But the world, in the words of an Economist blogger, is “maddeningly complex.” I think that it’s important to be at least aware of the extraordinary difficulty that goes into making sound decisions for society.

But of course, it’s important not to lose sight of the bigger issues.

In this case, what you have failed to do is to zoom out and consider that your proposal places unborn children in a de facto “less human” category under the law than other humans. That’s a dead giveaway that in your arguments, you’ve outsmarted yourself.

That’s one interpretation. I do agree with you that it can seem that way. My point is admittedly that fetal life is “different” from “regular” life, at least with regard to the manner in which we can protect it.

Look up Susan Kennedy Smith. She killed her kids, but made the mistake of doing so AFTER they were born. Nevertheless, she did it at the end of a long and tortuous series of life events. By the logic you propose, what she did shouldn’t be criminalized either.

I see your logic.

I’ll freely admit to not being a lawyer and being ignorant of certain legal details. But even a simpleton like me is able to see that a status in law in which the intentional killing of innocent human beings is NOT criminal is a broken legal status.

Maybe.

I was actually reading the news and this article came up. I was, of course, appalled at the doctor’s conduct (assuming what is alleged is true), and I think he should be punished.

Of course, the next question is, “Why?” And that’s where I sort of find myself unsure. On the one hand, yes, I’m appalled that he took the lives of a number of infants I consider living beings (and that the law does, as well, given the stage of their development). But on the other, I can’t help but think that a large portion of my personal moral outrage at his (again, alleged) conduct is the fact that he mistreated and abused young mothers in a singularly abhorrent way.

This is all to say that there is something unique about fetal life: it’s dependence on another life in a very unique way (perhaps multiple ways - biologically and, could we say spiritually?). That to me makes the idea that abortion and homicide are the same. They are different, and they need to be treated accordingly.

 

[seakelp]

Oh, so you don’t believe that either the parent or the child should be protected necessarily. (And by this, I am speaking of protection in terms of a right to life, protection from homocide, since the thread topic is about abortion.) In this case, no, I don’t think you hold the same position as the OP.

I’m not sure what the OP’s opinion is, so I can’t say for sure.

But I don’t understand your post exactly: could you elaborate?