April 09, 2006

Sincerely, Huh?

by PG

I'd been reading Will's and Quaker's back-and-forth on whether punishing abortion providers but not abortion receivers as murderers evinces consistent morality, hypocrisy or a view of women as incomplete moral agents with limited interest, as my own view is that this can be attributed easily to political expediency. However, Will's latest post struck me as bizarre:

The decision to punish the provider but let the mother go free is just one of many possible and reasonable moral compromises. It needn't stem from a belief that women are not autonomous moral agents-- one might just think that deterrence will be more effective when practiced on the supply side, that punishing mothers as well as doctors would lead to an undue blossoming of the underground abortion market, would make women more likely to attempt (dangerously) to force miscarriages on themselves, etc.
How in tarnation would punishing mothers as well as doctors make women any more likely to attempt to force miscarriages on themselves? On the contrary, as we have seen historically, punishing abortion providers is what leads to the "blossoming of the underground abortion market" and makes "women more likely to attempt (dangerously) to force miscarriages on themselves," due to the absence of legitimate abortion providers. If women were treated as murderers as well, they would have to contemplate whether the consequences of carrying the fetus to term would be worse than the consequences of being tried and possibly convicted (if you want to see an epidemic of jury nullifications, this law would do it) of murder.

Quaker's point about desperation is worth playing out more fully. Note that there is some variation in preference among those who support a general prohibition on abortion p; both Presidents Bush, for example, favor exceptions for rape and incest. They do not necessarily think that abortion is the preferable option even in these circumstances, only that the situation in which the pregnancy came about justifies killing the fetus. In France, one theoretically can obtain an abortion only if there are extenuating circumstances, including economic inability to care for a baby. If we are worried about the desperate and do not want to punish them for acting on their desperation, why not just make abortions for them legal and not punish those who helped the desperate? Why should our sympathy be only enough to keep the desperate out of prison and not to keep out those who aided them?

Malcolm Gladwell's review of Charles Tilly's book Why? has a good point about the abortion debate and other eternal circles:

When we say that two parties in a conflict are “talking past each other,” this is what we mean: that both sides have a legitimate attachment to mutually exclusive reasons. Proponents of abortion often rely on a convention (choice) and a technical account (concerning the viability of a fetus in the first trimester). Opponents of abortion turn the fate of each individual fetus into a story: a life created and then abruptly terminated. Is it any surprise that the issue has proved to be so intractable? If you believe that stories are the most appropriate form of reason-giving, then those who use conventions and technical accounts will seem morally indifferent—regardless of whether you agree with them. And, if you believe that a problem is best adjudicated through conventions or technical accounts, it is hard not to look upon storytellers as sensationalistic and intellectually unserious. By Tilly’s logic, abortion proponents who want to engage their critics will have to become better storytellers—and that, according to the relational principles of such reason-giving, may require them to acknowledge an emotional connection between a mother and a fetus. (Ironically, many of the same members of the religious right who have so emphatically demonstrated the emotional superiority of stories when it comes to abortion insist, when it comes to Genesis, on a reading of the Bible as a technical account. Thus do creationists, in the service of reasongiving exigency, force the Holy Scripture to do double duty as a high-school biology textbook.)

Tilly argues that these conflicts are endemic to the legal system. Laws are established in opposition to stories. In a criminal trial, we take a complicated narrative of cause and effect and match it to a simple, impersonal code: first-degree murder, or second-degree murder, or manslaughter. The impersonality of codes is what makes the law fair. But it is also what can make the legal system so painful for victims, who find no room for their voices and their anger and their experiences. Codes punish, but they cannot heal.

April 9, 2006 03:05 AM | TrackBack

The idea is this:

If you punish doctors but not mothers, then mothers to whom abortions are important can take on the increased search costs of trying to dig up an underground abortion doctors-- no risk of getting hit by a government sting, or of your desperation leading to an arrest. So the search costs make it harder to find an abortion, but not prohibitively so, or at least not for all women.

On the other hand, if you visit criminal liability upon the searchers too, that vastly increases the marginal cost to making your search for an abortion provider known to the wider world, therefore vastly increases the marginal benefit of miscarrying yourself (with plausible deniability) rather than going out into the black or grey market.

Anyway, agree or disagree with the economics, but this seems a not-implausible account.

Posted by: William Baude at April 9, 2006 01:01 PM

"So the search costs make it harder to find an abortion, but not prohibitively so, or at least not for all women."

But if you want to end all abortions, wouldn't you *want* abortion to be prohibitively hard to find? Again, if we want only the really desperate to be able to abort, those abortions ought to be legal for both provider and recipient. Moreover, a regime in which women are not punished for seeking an abortion further increases the access divide, as wealthy women go abroad for the procedure, or obtain RU-486 and go to a physician to ensure that the abortion completed.

Posted by: PG at April 9, 2006 11:08 PM

Maybe so. The point is that there are some substitutes (like acquiring black-market RU-486, various other self-help procedures, and of course the infamous coat hanger) that are effectively impossible to outlaw given some very enduring features of our constitutional regime.

So when trying to stamp out the regime of abortion provision but also recognizing that one's attempt will be imperfect, legislators ask themselves whether in the abortions that will inevitably happen anyway, they'd rather they happen comparatively dangerously or comparatively safely. The answer may well be the latter.

This is covered thoroughly in the vice literature on "harm reduction" v. "zero tolerance". The "zero tolerance" intuition is stronger in the case of conduct one believes to be murder, but again, there's no particular reason to believe that the anti-murder value trumps all other values.

Posted by: Will Baude at April 10, 2006 05:12 PM

I don't see how our constitutional regime, at least as currently interpreted, would prevent prosecution for self-help, considering that we have laws prohibiting drug importation, the consumption of illegal or unprescribed drugs and suicide.

But you seem to be arguing that there's almost a graphable line on the axes of "minimize number of abortions" and "ensure abortions are safe." Those of us in favor of legal abortion are assumed to* score highly on the second axis but poorly on the first; those who want to make abortion illegal to varying degrees score higher on the first axis than the second.

The theory of making abortion providers but not recipients liable for murder is that this is the point on the line at which abortion will be as difficult to obtain as is consistent with a very bare minimum of desired safety for the women who do obtain the abortions. I can see how this may seem theoretically accurate, but the reality appears to be very different; if abortions are outlawed, only outlaws will provide abortions, and these are unlikely to be much safer than those women would provide themselves. The sole safety advantage I see is that at least unlike the women in El Salvador, women could obtain medical help after the attempted abortion without fear of prosecution. (Though their outlaw abortion providers likely would try to convince them not to for fear of being named and prosecuted.)

* There are of course measures that can be taken to minimize the number of abortions without making abortion less safe or legal: liberalizing adoption laws, particularly toward making open adoption the norm; improving sex ed and access to contraception; giving young mothers high quality child care so they can work or complete their educations; etc.

Posted by: PG at April 11, 2006 02:45 PM

I don't mean that we would formally protect self-inflicted miscarriages. But the sort of legal regime you'd need to really stamp out that behavior simply would require more registries of pregnancies, more intrusive surveilleance of the home, etc., than is plausible in our legal order. (The same thing is true of some kinds of substance abuse, which is part of why they're still around.)

What I mean to be arguing is not that there's any sort of line like the one above. Instead, I mean to argue-- it is basically impossible in the feasible future for the government to stop a large number of women from self-inflicting miscarriages. And these self-inflicted miscarriages are more dangerous to the woman than abortions are (and obviously just as dangerous to the fetuses). So it's not silly to try to 1, minimize the number of abortions that occur while 2, trying to ensure that the abortions that do occur are done by doctors and not coat-hangers.

Where we seem to disagree is that you don't think that punish-the-doctor-pardon-the-woman is a policy that achieves both 1 and 2. I think it plausibly does.

Posted by: Will Baude at April 13, 2006 01:04 AM

I suppose I see it as implausible because of the extraordinary level of self-sacrifice that it requires on behalf of the doctor, who stands to be prosecuted for murder, to help the woman, who will not be prosecuted at all and thus has no reason of mutual self-protection to conceal the name of her provider. Punishing the doctor will achieve 1, but is unlikely to achieve 2, which is why I envisioned the line on those axes; one cannot do both very well simultaneously.

Posted by: PG at April 13, 2006 02:23 PM
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