Over at Public Discourse, Christopher Kaczor, a professor of philosophy at Loyola Marymount University and the author of The Ethics of Abortion (Routlege), offers a thoughtful and persuasive response to Dennis O'Brien's contribution to this discussion about abortion in the current issue of Commonweal. O'Brien detects an inconsistency, if not a contradiction, in the bishops' opposition to severe criminal penalties for women who have abortions:
The moral rhetoric used by many bishops to condemn abortion does not seem to fit the criminal penalties that they apparently accept. Further, I find it hard to believe that the bishops would support severe criminal laws commensurate with the moral rhetoric of abortion as an abominable crime. When there is a serious disconnect between the gravity of moral condemnation and legal penalty, one or the other should give. Either the rhetoric is too severe or the law is too lenient.
To which Kaczor replies:
Putting aside the political reality that lessening a criminal penalty may be necessary for getting the legislation to pass, it should be noted that a penaltys severity is not determined solely by the wrongness of the criminal act, but also by the likely consequences of that wrong for the community. Both the President of the United States and any other person have equal moral and legal rights not to be intentionally killed, and yet it makes sense to impose more stringent penalties on political assassins than on other killers. The difference in penalty is justified by the Presidents leadership in society. Killing a political leader can threaten the democratic order, destabilize the geopolitical balance, and perhaps even prompt a world war. Killing the average citizen does none of those things.Similarly, in the typical case of murder, someones life plans are thwarted, someones duties can no longer be discharged, and other people may fear for their lives. Though these factors might shape the penalty imposed on the murderer, they become irrelevant from the perspective of an unborn life that ends in abortion. So, one can hold that abortion and the murder of an adult both intentionally kill an innocent human being without being forced to also hold that abortion and the murder of an adult should be punished in exactly the same way by law.
This seems to me exactly right. But I wish Kaczor had mentioned another important distinction here: While abortion and the killing of an adult may both be described as the intentional killing of an innocent human being, their intentionality may yet be different in one important respect. With abortion, it is often only the killing that is intentional, not the killing-of-a-human-being. To put it another way, the fact that the life intentionally taken in an abortion is that of an innocent human being does not mean that the woman who has an abortion, or even the abortionist, understands that it's an innocent human being whose life is being taken. Now, Kaczor and I might agree that they ought to understand this, but I hope he would also agree that their culpability for not understanding usually isn't as great as that of, say, a killer who claims not to know that a forty-five-year-old woman is a human being. (Kaczor -- or the editors of Public Discourse -- might also have mentioned that both Peter Steinfels and Cathleen Kaveny, the other two contributors to the exchange we published, agree with Kaczor that there is nothing inconsistent about the bishops' rejection of harsh criminal penalties for women who have abortions. The reader is left with the impression that no one responded to O'Brien's arguments before Kaczor himself did.)
O'Brien also argues that the standard prolife position does not give enough consideration to the unique intimacy between the unborn child and his or her mother:
The pregnant womans womb is not just a geographic location for an independent entity that would be the same if it were located someplace else. The fetus is not just in her body, it is of her body: flesh of her flesh, bone of her bone. If one casts the abortion issue under the category of intimacy, shifts occur in the moral landscape.
To which Kaczor responds:
The intimacy argument, as articulated by OBrien, begs an important question: Why should independent moral status require independent physical status? We dont think that one conjoined twin may licitly or legally authorize a third party to kill her conjoined sister in order to terminate their intimate relationship. Indeed, the intimate relationship that always exists in pregnancy is a powerful argument against abortion. Every human fetus is a mammal, and every mammal has a mother. Sound ethical reasoning and just laws hold that human mothers and fathers have serious duties to care for and, above all, not harm their own dependent progeny. So, the intimate relationship that exists in every pregnancy gives rise to the duty of the mother not to harm her own child prior to or after birth, including by prematurely ending the childs life. Precisely because an expectant woman is a mother rather than a mere container, she has duties to her dependent unborn child.
This is mostly right, I think (as well as eloquent), but it fails to acknowledge that the unique intimacy of pregnancy is also a unique burden, and I worry that this failure diminishes the force of much prolife advocacy. We prolifers need to recognize that a law forbidding abortion is also a law requiring pregnant women to remain pregnant (at least until viability); and we need to recognize that this second requirement matters, both morally and legally. It is yet another reason for those who want the law to protect the unborn to oppose harsh criminal penalties for women who get abortions.
Most women who get abortions do so because they don't want to be pregnant, or because they don't want to have to care for the child after he or she is born, not because they want the life they carry to die (whether or not they consider that life an innocent human being). If their pregnancies could be ended in a way that did not involve a death -- if there were some nonlethal way to relieve them of the burdens of pregnancy and motherhood -- then they might be, well, relieved. (Adoption relieves them of the second burden, but not the first.) The burden of an unwanted pregnancy, both physical and psychological, is considerable, and should not be denied or overlooked. It is not the only consideration, of course; it is not even the most important consideration; but it is real, and one cannot understand the abortion debate, much less contribute to it, without taking it into account.
