Photo credit: Gage Skidmore (CC-By-SA 2.0)
Photo credit: Gage Skidmore (CC-By-SA 2.0)

The old saying goes that even a broken clock is right twice a day, and so we concede that even a guy like Donald Trump can be right once in awhile. “The Donald” was indeed right recently when he addressed the issue of abortion in his interview with Chris Matthews, or at least he was until he walked back his remarks a few hours later.

Trump was asked by Matthews, “ Do you believe in punishment for abortion (for the woman), yes or no, as a principle?” To this question Trump replied, “There has to be some form of punishment.”

Not surprisingly, a great deal of criticism ensued. But what did surprise me a bit, as it apparently surprised Trump, was the criticism that was leveled against him from the pro-life community.  The National Right to Life, Susan B. Anthony List, Concerned Women for America, and the U.S. Conference of Catholic Bishops all quickly distanced themselves from Trump’s remark, while Ted Cruz, John Kasich, and Mike Huckabee (just to name a few) all roundly condemned it.

In short, pro-lifers ran away from Trump’s answer like deer from a forest fire.

I have read a number of position pieces from Evangelicals who attempt to demonstrate why Trump was wrong. Most of these center around the notion that the woman involved in an abortion is herself a victim, and that she deserves mercy and compassion. Some of these move into the legal complexity that would be encountered if a woman were to be prosecuted. Some develop historical arguments in which the case is made that it was rare in the U.S. prior to Roe v. Wade for a woman to be prosecuted, particularly in the twentieth century. A number of these have mentioned the political goal of pro-lifers is not to seek punishment, but rather to end abortion.

All of these arguments make good points. The problem with these arguments is that they fail to deal sufficiently with Matthews’question, and they all assume that Trump’s answer is wrong. Read the question and answer again: Do you believe in punishment for abortion (for the woman), yes or no, as a principle?” To this question Trump replied, “There has to be some form of punishment.” Matthews’ question was with respect to the principle involved. He didn’t ask if it was practical, politically tenable, or historically done. He’s asking the hypothetical question that if abortion was banned by law, then would not those that break that law, logically, face some legal consequence? This principle would, it seems, be a weighty matter given the fact that most pro-lifers consider abortion to be murder. Matthews is keenly aware of that. The arguments may make strong cases for why it’s not a good idea to prosecute the woman, but none- -repeat, none– that I have seen really deals with the principle that Matthews asked about.

Trump’s answer, considering the principle, is exactly correct. Remember, Trump refused to say what the “punishment” for women in Matthews’ hypothetical would look like. He simply said it should exist in “some form”. This phrase leaves room for legal discretion, and could actually contemplate something quite minimal, but whatever the case, the principle of necessary legal consequence to breaking the law is fundamental to both deterrence and justice.

By dismissing out of hand the notion that a woman could, apparently under any circumstances and without any qualifications, be punished (again, however minimally) for having an abortion, the pro-life community has thrown this monumental principle under the bus. And in doing so, it weakened its moral case that abortion is, in fact, the murder of a human being.

The Left didn’t miss this point. Steve Malkenson wrote the following in The Huffington Post:

(The pro-life) contention is that life begins at conception. It thus follows that a fertilized egg / fetus inherits all the rights of every other human being, and even greater protection under the law due to its utter dependency on the mother. The entire rationale for overturning Roe v Wade and the prohibition of abortion rests on turning this moral argument into the law of the land. In so doing, aborting an unborn fetus at any stage would become tantamount to an act of murder.

Following this line of reasoning, any pregnant woman who willfully seeks an abortion would be murdering her unborn child. In no way would she be a ‘victim’ but rather a pro-active participant in the termination of a life. If one accepts this premise, what would be the argument that absolves the mother of responsibility? In what way should she be exempt from punishment for her willful act of murder?

There is only one rationale for the pro-life movement’s exemption of the mother from responsibility and prosecution – to make their extreme positions more politically palatable…The pro-life movement’s contention is that an unborn fetus is a human life and an abortion is an act of murder. Thus, in no way can it follow that the mother is an innocent victim and not complicit in murder… if Mr. Trump and the pro-life movement want to legislate morality, they should at least look seriously at the implications of their beliefs and have the courage to be consistent.

I want to reiterate that I don’t deny many of the points made by those who have written against Trump’s remarks on this matter. I think in many (most?) instances when dealing with women who sought an illegal abortion in this hypothetical, compassion and leniency should be the order of the day. I also don’t deny the obvious:  This whole hypothetical discussion has been a political disaster for the pro-life cause, and Trump managed to make it worse by changing his position multiple times in a matter of hours.

Nonetheless, the wholesale condemnation of Trump’s earlier answer is a real problem for pro-lifers. Arguably, doing so won them no support, but it did make them look inconsistent if not duplicitous. Worse, it undermined the pro-life movement’s primary contention which Malkenson points out: “…that an unborn fetus is a human life and an abortion is an act of murder.”

5 comments
  1. Sorry Shane/Brian, you really blew this one!

    ‘This isn’t politically wise.’ Sooo pragmatic; after all, political expediency always outweighs moral truth.

    ‘Those culpable go even beyond the mother getting an abortion.’ Absolutely…why stop at the woman?

    ‘Does this make legal sense?’ I don’t know what to say to this other than, either we are a nation of laws or we are not.

    ‘The goal is to end abortions, not punish people.’ We should end pedophilia too but not punish the pedophile?

    ‘Compassion and mercy are just as important as justice.’ God had compassion on his elect, but not at the expense of justice as evidenced by the cross.

    Regards,
    Michael Boyd

  2. Well put Brian. I agree that, while there may be many mitigating circumstances, and judgment is to be tempered with mercy where applicable (say in a case where the women is coerced, etc; the women, however, is not always the ‘victim’, as some are quite cold and calculating in the act), if abortion is considered murder, and if it were to be declared illegal, there should be penal sanction for all involved. To suggest that a women has suffered enough due to the loss of her aborted child as an argument for no sanction would apply as well to a women who murders her six year old. The arguments contrary to yours appear to lessen the value of the life of the unborn.

  3. I thought I’d share a comment made on Facebook by a family member who is a retired prosecutor (and a Christian).

    This retired prosecutor sees two problems with the Meyers piece. First, a woman undergoing an abortion is not aiding and abetting the abortionist by merely consenting to the procedure. A criminal offense requires an action that is contrary to a statute. Mere consent and passive acquiescence are not legally sufficient . Second, if the woman and the abortionist are both criminally liable, the woman would have to be immunized from prosecution to obtain her testimony against the abortionist, who, after all, is the primary offender. Meyers conflates moral guilt with legal guilt. A woman who obtains an abortion has sinned and is morally culpable, but prosecuting her is a virtual non-starter.

    I’d humbly suggest that those advocating this consider what is legally possible. This is what I argued in my piece… The mother certainly is morally culpable as she sinned. That doesn’t mean we as a society are required to prosecute.

    1. I say this with all due respect to your relative (because obviously he’s a lawyer and I’m just a guy who lives a few yards from a cornfield), but I think he largely missed the point of my piece. Perhaps that’s my fault for not making it clearer. In any case, Chris Matthews was not asking whether something was politically possible or legally feasible, he was asking about a principle in a hypothetical. And we all know that the legal complexities that are mentioned above are NOT the reason why the pro-life community ran away from Trump’s remark. I think Steve Malkenson is, unfortunately, somewhere nearer the truth in his assessment on that score.

      With regard to your relative’s comments, on his first point he presupposes that a statute couldn’t possibly be written in such a way as to make the woman’s participation in it criminal. He doesn’t mention the possibility of the woman inducing the abortion herself, so I won’t take that matter up for the moment.

      But I don’t see how one can take for granted that a statute couldn’t possibly be violated by the woman when the statute in question doesn’t exist except in history or in the hypothetical.

      To the contrary, however infrequently women may have been prosecuted, historically there were laws on the books that indeed made it a criminal offense to participate in their own abortions.

      His second point I had read elsewhere before, and again, it doesn’t deal with the principle that I spoke about in the piece: That a necessary legal consequence to breaking the law is fundamental to both deterrence and justice. He merely argues that it’s legally highly impractical. I actually agree with him on that…but it doesn’t change anything relative to the principle that is being dismissed. That principle should be especially important because, from our point of view, abortion is murder.

      Lastly, he says I conflate moral guilt with legal guilt. I’m confident he knows better than to suggest that some crimes aren’t both. The moral and the legal are not mutually exclusive.

      I would, however, humbly suggest that perhaps some folks are divorcing the moral from the legal, and if we really believe abortion to be murder, that separation is not good.

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