VERDICT: STILL HOPELESSLY ARBITRARY. The Canadian lawblogger Pithlord attempts to answer the (to me, completely unanswerable) question of how advocates of criminalizing abortion can justify excluding women who obtain abortions entirely from criminal sanctions:

*Criminalizing something much of a society thinks is permissible is often a mistake, even if that part of society is mistaken about the moral issue. That's basically my view of spanking. I might support criminalizing it if there was a social consensus against it, but I hardly want to drag ordinary parents away to jail when such a consensus doesn't exist.

*Many women seeking abortions do so under conditions of economic or social duress. This would be even more true if abortion was legally unavailable. A person opposed to the legality of abortion could regard this as mitigative, even if not justificatory.

The first point is a good one, but it's an argument against criminalizing abortion, period, not against excluding women but not doctors from punishment. (This is also the problem with arguments, such as Ramesh Ponnuru's, that are based on the "subjective intent" of those who seek abortions. Leaving aside the problematic definition of "intent," while it might be a credible reason for lenient punishments in general, it certainly can't be a good reason for punishing doctors but not women who get abortions. If anything, people who choose to perform abortions for a living are less likely to believe that abortions are immoral.) As for the second point, if being under "conditions of economic or social duress" is good enough to earn an exemption from criminal punishment, we can shut down most of our jails and release the prisoners right now. I would gently suggest that the number of American pro-lifers willing to apply the principle that "economic or social duress" should exempt one from criminal punishment more broadly could fit in a phone booth. Again, this might be a good reason for mitigation in an individual case, but not a generalized exemption.

Meanwhile, those interested in data about women who choose to get abortions and how it compares to the myths of pro-lifers should check out this post by the invaluable Ema of The Well-Timed Period. Shockingly, the empirical claims of Bill Napoli do not withstand close scrutiny.

--Scott Lemieux

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