Answering Tabachnick: speculating on the penalty for illegal abortion

David Tabachnick is a professor of political science in Nipissing, Ontario. He has an impressive list of publications and has written at least one book I consider extremely important. These days I pop in and read his Twitter feed from time to time, because I enjoy the way he criticizes several of the public figures who I otherwise like and tend to agree with.

Recently he responded to Ben Shapiro, asking what the penalty should be for an abortion. (Presumably Shapiro must have said abortion should be illegal, as I’m pretty sure he believes.) Tabachnick didn’t get an answer from Shapiro, or a straight answer from anyone else in the peanut gallery. So I thought I’d take a stab at it.

My position on abortion, as I’ve stated before, is that because we don’t know when human life begins we might as well err on the side of caution and say it begins at conception, and so logically abortion ought to be illegal. But as Tabachnick implies, this hard stance deserves to be fleshed out with an examination of what the penalty for an abortion ought to be in that case. Such an examination won’t fit in a Twitter comment, so I think Tabachnick is asking in the wrong place, but hopefully he and others asking the same question might find their way here instead.

We can begin by identifying two extremes:

On one end, abortion is basically premeditated murder, with the mother and the abortionist (if applicable) treated as co-conspirators. Whatever the punishment would be for a woman killing her 2 year-old, and for another person helping her do it (or vice versa), that should be the punishment for abortion. Let’s call this type of punishment P10.

On the other end, abortion is illegal on paper only: a symbolic proscription that expresses our collective unwillingness to officially sanction what very well might be murder but what we effectively allow in practice for pragmatic reasons; in almost all cases there are no charges pursued. Let’s call this type of punishment P0.

I don’t think I need to speculate in detail on every point on the P0-10 scale, I’ve just sketched out the extremes. Now I can discuss the issues that come into play as we move from one end of the scale to the other.

At the P10 end, the problem is that doctors and mothers clearly are not dangerous criminals (not to anyone aside from the aborted fetus, that is), and I don’t think there’s typically the same need to get them off the street for public safety reasons as there is for, say, a serial killer or unrepentant gangbanger. On the other hand, this end of the punishment scale is philosophically consistent: if we are going to say abortion is murder, at least in legal terms, then we ought to treat it as such.

The farther we move toward P10, the more our justice system is going to have to deal with what are in practical terms nonviolent offenders (about half of them highly trained professionals who have taken a hippocratic oath!) being prosecuted for murder. But this might result in a drastic reduction in abortion (hard to see how it wouldn’t), and possibly even generate other second-order effects such as a decrease in sex outside marriage, or an increase in use of contraceptives, as people take greater precautions to ensure they don’t wind up in a situation where the only two ways out are an unwanted child or serious jail time for murder.

The farther we move toward P0, the more the situation resembles one in which abortion is legal, with all the attendant problems and (to those predisposed to think so) benefits. This also means a scenario in which everyone sees an ostensibly serious law going unenforced, which could undermine respect for that law in particular or even for the law in general.

Personally, I think an optimal outcome would be something in the P6-8 range. Abortion, treated as the taking of a human life, should carry a serious consequence for anyone involved in carrying one out. This consequence should be serious enough to carry both a justice and deterrent component. But I also don’t think we can in good conscience treat mothers and doctors involved in abortion exactly the way we would our society’s most bloodthirsty killers.

I know that still isn’t a highly detailed answer, but hopefully it is thoughtful and specific enough for those wondering how the law should actually treat people involved in abortion, in a society where abortion is illegal.

We might also look at how this was done in the past when abortion actually was illegal. We might find either lessons there to emulate or pitfalls to avoid.

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