CAN THIS ARGUMENT BE SAVED? In response to my claim that the exemption of women from punishment under laws banning abortion is fatally incoherent, a commenter here (as a TAPPED commenter did earlier) invokes Ronald Dworkin's argument that abortion is a "cosmic shame" that nonetheless doesn't rise to the level of murder. The commenter says:

I have some sympathy for that argument even though I don't accept the premise (that abortion is at least morally problematic because it shows "disrespect for life".) Dworkin argues that this is really the position of most abortion opponents- that they do not in fact think that abortion is murder, and that they don't think this is shown through their actions. That part seems exactly right...If you have a position like this it doesn't seem implausible that one might think that abortion should be illegal, but might still think that those having abortions should not punished. I don't find that an attractive option myself, and hope I'd not find it to be one even if I did think that abortion showed disrespect for life, but it's not an incoherent one.

The problem is that adopting Dworkin's position makes things worse, not better, for pro-lifers:

  • Fundamental reproductive rights have been entrenched for decades, in decisions that have no chance of being overturned. Whatever its other defects, the "seamless web" argument that fetuses are comparable to babies offers a compelling justification for overriding these rights. An inchoate sense that abortion reflects disrespect for life but not in a way that is comparable to murder, much less so. Most people are ambivalent about abortion, but there is no effective way of writing these moral ambivalences into legislative enactments. As Dworkin argues, once you've conceded that abortion is more of a "morals" issue like adultery, it becomes almost impossible to justify criminalization.
  • The exclusion of women from punishment under statutes justified by such rationales is every bit as incoherent as it is under claims that abortion is comparable to murder. Once the criminal law is involved, there's simply no good reason to exclude women from punishment that is applied to doctors unless you don't believe that women are moral agents, period. (It would also remove any legal stigma from self-administered abortions, although such abortions are not in any way morally different.) Dworkin's rationale might justify lower penalties in general, but provides no basis whatsoever for excluding the woman primarily responsible for the act from punishments that are applied to the person she hires.
  • Finally, an absolutely inevitable consequence of abortion laws enacted under such a rationale is that these laws will be enforced in an egregiously arbitrary manner (as was the case in the United States pre-Roe.) In practice, seeing abortion as justifiable in some circumstances but not others will mean that it's justifiable when you choose to get one but not necessarily when others get them -- which means that abortion access comes down to power, not finely drawn moral distinctions. Criminalizing abortion really means abortion-on-demand for affluent women and very limited access to safe abortions for poor women, which is both unfair and completely incoherent, unless somebody wants to argue that abortion is less of a "cosmic shame" when a fetus is in an affluent woman's body.

    The argument that most pro-lifers don't really see abortion as comparable to murder (which, as was the point of my argument, is certainly correct) makes their position weaker, not stronger. Seeing abortion as a difficult, ambiguous moral problem makes criminalizing abortion almost impossible to defend if any value is placed on reproductive autonomy at all.

    --Scott Lemieux

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