At Crescat, "Quaker" and Will Baude are re-treading old ground, and I continue to agree with Quaker rather than Will. Even with the authority of Jeff Rosen behind him, I still don't agree with Will's sympathy with the thought process of those who claim to believe that fetuses are persons with a right to life, and who would imprison physicians for performing abortions, but not penalize the women who solicited the abortions. The popular tendency to demonize the supplier rather than the consumer of a morally questionable good or service always annoys me. Why is the marijuana seller, if we assume that sale of an illegal drug is his only crime, worse than the pothead? the producer and actors in pornography worse than those watching it? Will says, "Presumably what makes abortion different, in the eyes of those who are pro-life but don't believe in maternal criminal liability, are the very powerful interests in bodily integrity, autonomy, mercy to the desperate or the weak, and so on-- the very arguments that pro-choicers make on the political scene every day!" He also quotes Rosen:
The truth is that many Americans who believe that life begins at conception also believe that it would be cruel to punish women who are desperate enough to perform abortions on themselves, and cruel also to punish women criminally for seeking illegal abortions from doctors. The laws are designed to deter doctors from performing abortions and therefore to make abortions more difficult to obtain; at the same time, many citizens believe that women who manage to obtain abortions anway should not be imprisoned for their decision. This position may not satisfy a canon lawyer-- it may not be consistent, in other words, with an absolute devotion to fetal life in all circumstances-- but it is a perfectly rational way of balancing a devotion to fetal life with other moral concerns, and it is a balance that many of our citizens ... embrace.
First of all, I don't think that mercy to the desperate or weak is a significant of abortion prohibitionists. If it were, we would see a push from the right to have laws like those in Europe, where there is legally less "abortion on demand," but contrary to Justice Scalia's belief, functionally greater access for most women who seek an abortion than there is in the United States due to state funding. Even in Finland and the UK, which are more restrictive than most of the continent, abortions can be obtained for "economic or social reasons." If desperation seems a sufficient justification for an abortion, someone who is truly merciful and compassionate toward women would want a system in which they could seek an exemption from the general prohibition, have a safe, legal abortion performed, and avoid the wire hanger cliche altogether.
I'm always appalled by prosecution of doctors who are treating the patient's health as the top priority, but apparently cruelty toward them is morally acceptable under Will's and Rosen's hypothesis of the pro-life mind. To create a system in which a doctor, who succumbs to a desperate woman's pleas that he abort the fetus she is carrying or else she'll do it herself, becomes a felon, strikes me as either stupid or very politically clever indeed. Just as it's politically easier to pick on the plaintiff's bar that brings questionable lawsuits than the juries that reward them, it's politically easier to decry the "abortion industry" than women who feel the need for an abortion. As far as I know, no abortionists are in my acquaintance, but women who have had abortions are. If we have a law that says the fetus is a legal person and the murderer thereof can be prosecuted, except when it is the person discharging herself of the pregnancy, we won't be creating a higher regard for fetal life; we'll simply be creating a more dangerous environment for ending such life. Instead of procedures that use anesthetic and likely minimize pain for the fetus as well as the woman, we'll have more women trying to self-abort, resulting in incomplete abortions and the potential for women to be legally restrained from finishing the job.
Unlike Rosen, I cannot endorse such a position as a rational balancing. The actual effects are too absurd, and imply that either people who hold that position never have bothered to think about its consequences, or hold the position to sound merciful while actually making things worse. At least if both the pregnant woman and physician were penalized, each would have a motivation not to report on the other; under the proposed regime, women who were disgruntled with their physicians could have a nasty revenge by reporting them as abortionists, with no cost to the women themselves.