The purpose and function of criminalization and criminal punishment is the subject of a great deal of debate. At one level, the designation of a certain behavior as “criminal” is a declaration of values. A society that outlaws theft does do on the basis of its belief that theft is an immoral and an unacceptable behavior. But criminalization is more than merely a statement of value. Criminalization says, “not only do we believe this behavior is immoral, we believe it so strongly that we will punish anyone who engages in it.” In other words, criminalization necessarily includes punishment.
Criminal punishment itself has several acknowledged purposes. On one level, the promiseof punishment is intended to function as a deterrent. For example, although most of us would like some extra spending cash, the idea of spending the rest of our life behind bars if we get caught probably makes us think twice about robbing a bank. The promise of punishment deters our behavior.
On another level, the performance of punishment is intended to function as retribution. We expect criminals to pay for their crimes, one way or another. This payment takes on different forms. Sometimes it’s a monetary payment, sometimes it’s a prison sentence, and in extreme cases, it’s death.
The general merits and demerits of each of these aspects of criminal punishment have been thoroughly debated by philosophers, legal experts, criminologists, and others for centuries. My intention here is not to discuss these concepts on a merely theoretical level, but to demonstrate how they each contribute to the complexity of the abortion debate. Let’s begin with the performance of punishment.
The standard argument from the pro-life side is that “abortion is murder.” Murder, of course, is a specific crime with a specific punishment attached to it in national and state legal codes. We would assume, therefore, that those who truly believe that abortion is murder would want to see it codified as such in state and national laws. We would also assume, for the sake of consistency, that they would want to see both the women who obtain abortions and the practitioners who perform them prosecuted and sentenced as murderers. Curiously, however, that’s not the case.
For example, in 2016, then presidential candidate Donald Trump said in an interview with Chris Matthews that in order for pro-life legislation to be effective “there has to be some sort of punishment” for women who obtain abortions. Almost immediately, mainstream pro-life organizations were distancing themselves from Trump’s statement. Jeanne Mancini, who at the time was president of the March for Life Education and Defense Fund, issued a statement in response to Trump. She said,
Mr. Trump’s comment today is completely out of touch with the pro-life movement and even more with women who have chosen such a sad thing as abortion…No pro-lifer would ever want to punish a woman who has chosen abortion…We invite a woman who has gone down this route to consider paths to healing, not punishment.
Similarly, in a statement on behalf of the National Right to Life Committee, NRLC president Carol Tobias said that the organization “has long opposed the imposition of penalties on the woman on whom an abortion is attempted or performed.” She specified that “penalties should be imposed against any abortionist who would take the life of an unborn child in defiance of statutes prohibiting abortions.” Within hours, Trump had walked back his original statement and stated that punishments should be reserved only for those who perform abortions, not the women who receive them.
I bring this up because, while this mainstream position seems somewhat compassionate toward the women, it also seems quite inconsistent with the belief that abortion truly is murder. It’s a graphic scenario, but imagine for a moment that the mother of a 6-month-old baby or a 6-year-old child decided that she was tired of being a mother and hired someone to murder her child? If abortion truly is murder, as it is often asserted, then the scenario I just described is morally identical to abortion. Do you really think that in such a scenario most people would “oppose the imposition of penalties on the woman?” According to the criminal code, murder-for-hire is still a punishable crime. If abortion is truly murder, how is a woman paying a doctor to perform the procedure materially different than any other form of murder-for-hire?
And what about women who self-abort? As we will see, this is a common occurrence when abortion is criminalized. In those cases, there is no doctor to punish. If “no pro-lifer would ever want to punish a woman who has chosen abortion,” then there would be no punishment for self-abortion, despite the fact that it’s believed to be murder? Unfortunately, we don’t actually have to imagine a comparable scenario in which a woman intentionally kills her born children; we hear about them far too often. In many, if not most of those cases, the general public demands that the woman be punished. The tragic murder of 3-year-old Caylee Anthony in 2008 is just one high-profile example of that very thing.
The point I’m trying to make here
is that while pro-lifers saythey believe that abortion is
murder, their attitudes regarding punishment appear to be inconsistent with
that belief. In other words, I believe the very fact that most pro-lifers are
uneasy with the idea of punishing women who choose abortion reveals that most
pro-lifers don’t actually believe abortion is murder. I’ll get
into this more in a later installment but I think this is actually good news because
I believe it opens up the door for a unified “third way” approach thatboth
protects women andreduces abortions.
 Donald Trump, interview with Chris Matthews, March 30, 2016. http://www.msnbc.com/msnbc/trump-advocates-abortion-ban-walks-back-punishment-women-remark
 Quoted in Ben Johnson, “Pro-Life Leaders Alarmed: Trump Responds to Question Stating Women Who Abort Deserve ‘some Form of Punishment,” Life Site News, March 30, 2016, https://www.lifesitenews.com/news/pro-life-leaders-outraged-donald-trump-says-post-abortive-women-deserve-som