What Should Abortion Penalties Be?

My fellow Catholic Patheosi Kyle Cupp says that pro-lifers should not be vague about the penalties for abortion that they envisage. This is obviously a fair question to ask.

Before I answer the question, I would say a couple things by way of prolegomena.

The first is that in the United States, the road to a pro-life policy (even just a pro-life possibility) goes through the overturning of Roe v. Wade. Overturning Roe v. Wade would not mean making abortion illegal, but rather, return the issue to democratic government as the Constitution envisions, that is to say, at the state level. In other words, within the American context, what is being envisioned is a situation when life protection bills are passed on a state-by-state level, which necessarily implies that penalties would vary depending on the state. More generally, movements are usually united around a common cause. I don’t doubt that there’s a spectrum of opinion in the pro-life movement on what an ideal post-Roe regime would look like; there is no spectrum of opinion on the legality of abortion (except at the edges). This is in the nature of broad civil rights movements: they exist precisely because broad swathes of people who would otherwise disagree about a great many things decide to put aside those disagreements and unite around a single “ask” that they have in common.

The second is that I have only ever encountered the idea that pro-lifers want to jail women who get abortions in the mouths of critics of the pro-life movement, whether (especially) pro-choice people or (very frustratingly) those people who describe themselves as pro-life but de-solidarize themselves for whatever reason(s) with the actual existing pro-life movement. Let me put a fine point on it: members of my family founded the two most important pro-life organizations; in my somewhat idiosyncratic and roundabout way, I am involved in American politics and frequent many American pro-lifers; I’ve been in and around the pro-life movement literally all my life, on two continents. Including the kinds of pro-lifers who handcuff themselves to abortion clinics. I can solemnly say that I have never, not once heard any pro-lifer call for, or anticipate, or desire that women be jailed for getting abortions, even in private, even when drunk, or whatever (at least insofar as I remember–but I’m pretty sure I would’ve remembered, since it would have been shocking, which itself goes to my point). One of the most utterly commonplace (and correct!) pieces of pro-life rhetoric is the idea that women who have abortions are victims right alongside their children. So I view this idea as a complete canard. And I’m not going to put too fine a point on it: people who consider themselves pro-life but refuse to associate themselves with the pro-life movement based on the supposed cruelty of wanting to jail women for getting abortions, no matter how good their intentions, are simply useful idiots of the pro-abortion movement. (“See? Even pro-lifers think the pro-life movement is too extreme!”)

With that being said, there is still merit to the question Kyle asks, and for a couple reasons.

The first is that even though this meme of jailing-women-for-getting-abortions is a canard, it is still a meme that has had considerable success, and has infected many people who believe it, or half-believe it, innocently and in good faith, and so it should definitely be countered.

When my friend Ramesh Ponnuru published his (must-read) book The Party of Death, a striking number of reviewers took for granted that Ramesh’s book called for jailing women who get abortions even though it absolutely does no such thing–even though it didn’t deny it either. This shows the persistence of the canard, but it also shows the desirability of clearly setting out what pro-lifers believe about abortion sanctions would help clear up misconceptions, as Ramesh himself later admitted.

The second, and more Catholic one (although I think all pro-lifers should accept it, and as a matter of fact most do in practice), is that the Gospel of Life we are supposed to preach and bring to fruition cannot boil down to the legal prohibition of abortion (although it is a necessary, albeit insufficient, component of it). This is the thrust of the whole concept of the “culture of life.” The idea of the “culture of life” is precisely to say that a pro-life society is not just one where abortion is illegal, but one where all of the society–policy, civil institutions, culture, and so on–work together to welcome all life, and that this is the ultimate goal of the pro-life movement. Because the road to that goal passes through slaying the dragon of Roe, this is what we are most focused on at the moment, but we do not lose sight of that ultimate goal. (And, contra critics of the pro-life movement, including the useful idiots, this is something of which most pro-lifers are well aware; yes, including many of the non-Catholics. All of them? No. See above about the definition of a movement.)

But broad political movements do not win just by being against something, but by being for things; by painting a positive vision of where they want to take the country. At least that’s a commonplace piece of political rhetoric. I don’t know if it’s actually true, but I do think the pro-life movement should act as if it were true. We should paint a picture of where we want to go, and what a fully pro-life society would look like. It’s certainly no coincidence that I am involved in an intellectual movement one of whose primary aims is putting family policy and particularly family policy for the lower and lower-middle classes, at the center of the domestic policy agenda, nor, I think, (am I allowed to talk about this in public?) that many of the movement’s stalwarts are Catholics, and an even greater number pro-lifers. In my mind, at least, wonky things like child tax credits are certainly a part of the much broader tapestry that a culture of life would be. And if we do want to weave that tapestry and show it to people in the hopes that they’ll buy it, then another part of that tapestry has to be abortion penalties.

So, what should they be? Well, here I can only speak for myself. I remember having a discussion about abortion with a close friend who is a textbook progressive (in our defense, we had a few drinks), and I very distinctly remember him jabbing his finger in my face and, outraged, shouting “Do you realize that before abortion was legal, doctors could lose their license for giving abortions?!?!?!?!” and I only being able to think “Well, that actually sounds like an excellent idea!” To my mind, punitive enforcement of an abortion ban should focus on providers, with women always having immunity. And even though we rarely talk about abortion penalties during our Secret Meetings of the Secret Pro-Life Club, my general sense is that this is roughly where most pro-lifers are, as well.

(I should probably add that for my part I oppose prison for all persons, but I’m pretty sure that (sadly) I don’t speak for the rest of the pro-life movement in saying so.)

So there. I’ve put my cards on the table.