Photo by Sora Shimazaki on (cropped)

I think that some people find the idea that embryos or foetuses are human beings with rights and equal moral status so absurd that they don’t think it’s one we can possibly genuinely believe. But we really do! (See this post in particular, and also these posts, to see why.) When I say that I am pro-life, one of the things that means for me is that the death of an embryo or foetus is the death of a human being, and that it follows that we think that we should refrain from killing them just as we should refrain from killing toddlers or adult humans. 

I also do not want to punish or imprison women for having abortions – no one in the Minimise Project does, nor do any of the pro-life people I know. (Personally, I think that in today’s society, it would actually be wrong to do so.) 

Some people might wonder whether there is something inconsistent about this. They might think that if we think that taking the life of an embryo or foetus is just as bad as taking the life of a toddler, we should also think that we should punish people who have abortions just as severely as we would punish people who are involved in committing or assisting in murder. I firmly believe that this is not the case. If it seems obvious to you: great! I think that for a lot of people who move in pro-life circles, this can seem so self-evident that it’s easy to forget that it can be a genuine worry.

I’ve occasionally talked to well-meaning and horrified pro-choice people who think that abortion bans necessarily mean prison sentences for women – presumably because they think that pro-life people think abortion is murder, and that it therefore follows that we should treat doctors who perform abortions, or women who self administer abortion pills, like we treat murderers. The pro-life positon doesn’t entail this conclusion at all. If you’re sceptical, here’s some reasons why. I don’t think it’s a comprehensive list, and I’m not a lawyer, but I’ll make a few different points that seem important to me: about the purpose of abortion bans; about the socio-economic injustice, sexism and the options available to women; and about subjective culpability. 

  1. Point of abortion bans: abortion rate reduction vs punishment

Maybe the first point to make here is about the purpose of having laws that ban abortion in the first place. As far as the Minimise Project is concerned, the point is to protect unborn life and reduce the abortion rate, not to punish people. 

You could see the law as an instrument designed to dole out punishments and ensure that as many people as possible who break it are punished in proportion to the gravity of the crimes they commit. Perhaps someone whose motives were obviously evil, a serial killer, for instance, is someone we might want to punish because of the suffering and death they’ve maliciously caused. But you can also see laws as being meant to discourage people from doing something, and make it happen less often. For example, someone might want to make it illegal to sell cigarettes to teenagers, not because their ultimate goal is to punish all the minors and the shopkeepers who would normally sell cigarettes, but because they want to discourage and prevent them from doing this in the first place. 

And, so, if the purpose of a ban is prevention, you might want to ban something without punishing everyone who does it. For example, the Swedish model approach to banning prostitution does so by placing penalties on the people who buy sex, but not those who sell it, on the basis that people who engage in sex work are often victims. Or If you want to ban the sale of cigarettes to minors, because you want to prevent teenagers from smoking, you might only punish adults who purchased the cigarettes for them, or the sellers themselves – or you might impose penalties on the minors as well, but lesser ones. The logic here might be that you want to prevent the sales, and punishing the sellers is sufficient to achieve this. (And maybe you also have reasons not to want to punish minors: like that it might be bad for their welfare and the trajectory of their lives if they have to pay big fines or go to prison!) 

In the next two sections, I’ll argue that there are really strong reasons to do something like this with regards to abortion. Leaving aside the question of whether or not  we penalise professional abortion providers, there are many very good reasons not to punish women who have abortions. This is compatible with the view that the lives of the unborn are valuable, and that they are our moral equals who are entitled to the same rights and respect as any other human being. 

2. Sexism, socio-economic injustice and abortion 

Personally, speaking for myself, the first of these is that while abortion is chosen by individual women, it is often a last choice, and one that would not have been chosen if better options had been on the table. That this is not the case is often other people’s fault. 

It is not right that women are put in situations where they worry they have to choose between their career, education, financial security, their ability to care for their other children as well as they would like, and continuing with a pregnancy. It is deeply wrong and unjust that women should have to make these choices – and it’s to the benefit of, say, employers who would be happier to see employees choose to become un-pregnant, than to change their workplaces to better accommodate parents. Our society does not do enough to support women, or families, especially those who face the challenges that come with poverty, or with illness and disability. What kind of society offers to alleviate the burdens of sexism, poverty, and other kinds of injustice that women face by offering to kill their offspring for them? In such a society, it seems wrong to punish the women who have abortions when they are often already being wronged by the very fact that their situations are such that this seems like best option available to them. 

We live in a society that collectively decided to Repeal the 8th. Our state decided to provide women with abortion access through our health service. We live in a society that collectively lets women and families fall between the cracks. Collectively as a society, we don’t do enough to support parents whose children have disabilities or life limiting conditions. When many people voted for repeal, and the women who seek abortions often face such difficult circumstances, it is unfair to blame or punish them. Abortion is rarely the first choice for the women who seek it. It’s everyone’s responsibility to build a society that provides better options. This doesn’t mean that we should not ban abortion. But it does mean that we should not punish the women who seek it out.

This brings us to another – hopefully very obvious – point. 

2. Subjective Culpability

While we know that embryos and foetuses are human persons, that isn’t obvious to everyone. It is clear to us that an abortion kills a human person. But it is not clear to many people. 

That makes a difference to people’s levels of subjective culpability. There is a difference between someone who intentionally and knowingly kills another person, and someone who kills that person without realising what they are doing. We would definitely think that the first person was at fault and should be blamed for their actions. But in some cases, we might think that the second person was innocent and unlucky. If anything, instead of blaming them, we might feel kind of bad for them. For example, imagine John, who kills another person at a shooting range because they were hiding behind a target that John was aiming at. John genuinely had no reason to suspect they were there, and had taken all the safety precautions the shooting range advised him to take. Objectively speaking, he killed someone. But he thought that he was shooting at a target, had no reason to think otherwise, and generally did everything he was supposed to do: so his level of subjective culpability is extremely low. He did nothing wrong; he was just very unlucky. I, for one, wouldn’t want John to be punished! 

The idea that to be guilty of a crime, you need to have been aware of committing it is pretty intuitive. I’ve already warned you that I have no legal expertise at all. Nonetheless, as far as I’m aware, in the law, the concept of mens rea, or criminal intentis used to capture this idea: it is usually necessary to prove criminal intent to prove guilt in a criminal trial. The defendant doesn’t not know that their conduct is illegal to be guilty of the crime, but they do need to be conscious of the facts that make their conduct fit the definition of the offence.” (So, if you shot someone behind the target at the shooting range, you wouldn’t need to know it was illegal to shoot them, but you would need to know that you were shooting them.)

One way of understanding the concept of criminal intent is to distinguish four levels of mens rea. The highest is that you purposefully commit the act in order to achieve a particular result. (You shoot the person on purpose.) The second is you are practically certain that your action will cause a particular result  – you ‘know’ it will cause that result – and do it anyway.  (You are not shooting your rifle in order to shoot the person – maybe you just want to shoot the target. But you know it’s going to hit the person as well, and you shoot anyway.) The third is that you act recklessly, disregarding a substantial and unjustified risk. (Maybe your aim isn’t very good and you can see that the person is standing right next to the target, but you shoot anyway.) The fourth is that you are negligent: you are not aware of the risk but should be (Maybe you didn’t read the huge signs at the entrance saying ‘PLEASE READ: URGENT SAFETY CONCERNS’ that mentioned trespassers sneaking into the range to sit behind the targets.)

I think that it’s very plausible that many women who have abortions are like the person who shoots at the target without knowing that there is anyone behind it at all. I do not think that women who genuinely believe a foetus is just a clump of cells, and who trust doctors, authority figures, friends and family telling them this, can be said to purposefully or knowingly kill – or assist in killing – anyone. Now, to play ‘devil’s advocate’ for the sake of the argument, maybe in some cases, you could argue that they thought there was a chance that the pro-life position was correct and so they knowingly ran a substantial and unjustified risk of killing a person (this would fall into the third category, ‘recklessness’). Maybe they had been exposed to pro-life arguments and were unsure what to make of them but were somewhat convinced. Or, in other cases, you could argue that they were not aware of the risk that the foetus was a human person but should have looked into the possibility (this would fall into the fourth category, ‘negligence’). But, to me, anyway, it seems deeply unreasonable in today’s society to say that someone should be punished by the law for having failed to read arguments on websites like this one and given them sufficient consideration. (How would you even evaluate that?) And, if they’ve already had to undergo abortion, it just seems wrong to want to inflict this punishment on them. 

It is as objectively wrong to kill a foetus or embryo as it is to kill a toddler or an adult. But, that doesn’t mean that we need to treat the women who have abortions the same way we treat people who murder children or adults. Facts about pregnancy, and how our society views the unborn, make the subjective culpability likely to be much, much lower. (When we think about many of the real women who have abortions, it almost seems obscene to make the comparison between their characters and ‘just deserts’ and those of most people who knowingly killl adults of children!)

Of course, there are some women who have abortions and who do think foetuses are human babies, and so you might worry that the subjective culpability considerations discussed above might not apply to them to the same extent. But even this, doesn’t always mean that they are not sympathetic. I always remember this quote from a 2005 Guttmacher institute study on women the reasons why women in the US have abortions:

“I am on my own, and financially and mentally, I can’t stand it now. That is one whole reason.…It’s a sin to bring the child here and not be able to provide for it.…This is just in the best interest for me and the children—no, my children and this child.”—19-year-old with three children, below the poverty line“)

It’s not clear to me that this person doesn’t think an unborn baby isn’t a human child.

And what if there are some women who aren’t sympathetic or non-culpable in these ways, who think that they’re killing a human person and freely choose to do it anyway? The fact that it’s overwhelmingly likely that by making their punishment a priority, we’d end up also prosecuting, trying and probably punishing other women, like the ones described, is a good reason not to do it. There’s no inconsistency there.