How should abortion be penalized after Dobbs?
Abortion is almost never justifiable, but it is often excusable. This is the conundrum facing our society and our law in America after the Dobbs Supreme Court decision.
Indeed, Roe-induced confusion in the public mind has made abortion much more excusable than it used to be, even though it has never become justifiable (except, perhaps, in the defense of the mother’s or a co-gestating child’s life). This means that today the penal enforcement of abortion laws has to play a smaller than ordinary role in saving lives.
Most pro-lifers recognize this point by refusing to support laws penalizing women who have abortions, thinking them often excused or nearly excused.
Besides this omission of punishment, however, pro-lifers should pursue other measures that recognize the frequently excusable nature of abortions today, focusing on public messaging and education about foetal development (perhaps as Hungary has done), on the harm abortion often does to the mother and others, on assistance for birth and childcare needs, on paid leave and other employment reforms, on taxation of abortion clinics to support pregnancy assistance centers, and on civil suits against abortionists by aggrieved parties (and perhaps simply by concerned citizens, as in Texas), and the like.
To elaborate a bit: the law is a teacher. If the law is to teach the fundamental truth of equal human dignity, it must never say, for example, that early abortions are in principle more permissible than later abortions. But while this truth is just beginning to be heeded by many, it cannot effectively or even rightly be fully realized in practice.
The law need not and should not insist that penal or civil sanctions be applied equally throughout the life of the unborn child. If we are relying on concerned or aggrieved citizens to bring civil suits, for example, we have to accept that such persons may be more likely to bring suits against abortionist practitioners who are doing late-term abortions than against those who are doing early abortions. We must allow compromise in practice, while never in principle.
Moreover, even where abortive acts are clearly inexcusable, as may well be the case for the many practitioners of abortion who operate deliberately rather than desperately, punishment could be moderated or even be withheld entirely wherever it would cause more harm than good. Costly fines (or civil damages, as just mentioned) rather than jail terms might be the best remedy here.
Even the principle of protection from the moment of conception need not be implemented immediately. Roe permitted no protection at all for unborn children throughout most of their intrauterine lives. Protection for some is better than no protection for anyone. There is nothing wrong with giving only half a loaf of bread to someone who is starving, so long as it is not done with the implication that that is all the person deserves or is ever going to get.
There is one other nuance that we should keep in mind.
Many people find it difficult to accept the fetus as a fellow human prior to around 12 weeks after conception, the time when the unborn child appears fully formed, externally and internally. Prior to this stage, many feel the child to be still incomplete, in large part due to an outdated but still frequent biological mistake. Someone who thinks incorrectly that the gestating child is being constructed (e.g. by God) – rather than developing itself – may think that, before 12 weeks or so, some of its crucial parts have not yet been added by the constructor. After this point, however, it is clear to any observer that nothing more gets added; only growth and maturation occur. And growth and maturation are directed from within by the very being that is growing and maturing, rather than by the additions of some external fabricator.
So now, after 12 weeks of gestation, all can finally see clearly what was in fact already true from conception: that one and the same being simply develops itself through many stages.
In practical terms, this means we should be especially understanding of people (and governments like those of Mississippi and many European nations) that want to draw a dividing line between permitted and forbidden abortion around 12 weeks. (Mississippi's menstrual-period-based "15 weeks" is approximately 13 weeks after conception.)
But in the battle for principle, any 10-15 week dividing line is our main enemy. We should fight very hard to avoid implying that such a line has permanent legal validity, precisely because its intuitive but erroneous appeal could well make it a long-lasting barrier to protection of children in earlier pregnancy.
The brilliant scientific work of Maureen Condic should be used extensively to combat this “construction” error (she calls it a "manufacturing" error) and to explain the continuity of individual human identity from conception to birth. I also have made contributions in this regard (“Construction vs. Development: Polarizing Models of Human Gestation,” Kennedy Institute of Ethics Journal, 2014).
In explaining the unchanging identity of the child between conception and birth, we can draw strong support from the text of the US Supreme Court’s Dobbs case.
Towards the very end of its opinion, the majority writes: “A law regulating abortion … must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests … These legitimate interests include respect for and preservation of prenatal life at all stages of development.”
There is no claim here of a metamorphic change from “potential life” (the term used in the old Roe case) to actual life, to the first heartbeat, to 10-15 weeks, to the first sensitivity to pain, to viability or to birth. Instead, there is respect for prenatal life at “all stages of development”. This language of continuity throughout gestation is the greatest pro-life teaching of Dobbs.
(Updated July 9)
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