Kevin Williamson, a flame-throwing National Review contributor for many years, was recently hired by The Atlantic as part of the magazine’s effort to include conservative voices, and then he was fired. The bridge too far was not the fact that he had once tweeted out a call for women to be hanged for having abortions, but the fact that this wasn’t just an impulsive tweet. In a podcast unearthed by his critics, he can be heard saying that he does indeed think women who have abortions should be treated however we treat murderers. He also expresses doubts about capital punishment, so—rejoice?—the bit about hanging was just a rhetorical flourish.
I have not wasted any tears on Kevin Williamson. This was an unwise hire and a necessary fire. And yet what he said about abortion—minus the incendiary stuff about hanging people—was actually an excellent reminder that pro-lifers aren’t just misty-eyed about fetuses, but have to be brutal about pregnant women. It’s too bad that liberals have joined with conservatives in making the abortion/criminality connection seem beyond the pale.
And yes, most conservatives want to sidestep the issue of a woman’s culpability if she has an abortion. Remember when Donald Trump got into big trouble with his minders for saying that he would like to see women prosecuted for murdering their unborn children? The minders rushed in to say what he really meant was that abortion providers should be prosecuted. That’s the standard pro-life view. Pro-lifers think they can label the fetus a person, and label women as person-killers for having abortions, but limit the criminal charge of homicide to the person who performs the abortion.
But how can that be? If abortion is person-killing, then prosecution of women ought to follow, in all consistency. At least, that’s how it seems, on the face of it. We prosecute people who commit homicide, whether they do it with their own hands (like the abortion provider) or hire someone to do it (like the mother hires the provider). How could it make sense to prosecute providers, but not the women who hire and pay them?
Conservatives have wrestled with this, but without producing any good answers. For example, New York Times commentator Ross Douthat, writing about the Kevin Williamson firing, opined that our current abortion laws constitute “a grotesque legal regime in which the most vulnerable human beings can be vacuumed out or dismembered, killed for reasons of eugenics or convenience or any reason at all.” Yet he’s not with Williamson on criminal penalties because “pregnancy is unique in ways that mitigate culpability” and “the government can only go so far in restriction without becoming a reproductive police state.”
Surely Douthat is not taking his own view of abortion seriously enough. When an already-born baby might be killed, we let Child Protective Services invade the privacy of the family and the home, preventing killings. If that fails, we prosecute the perpetrator, even if the stress of early motherhood might “mitigate culpability” to some degree.
Or is the boundary of the body something sacrosanct? It just can’t be, if you (like Douthat) believe abortion should be prohibited. Laws forbidding abortion would be intrusive, considering that pregnant women would be forced to endure unwanted pregnancies. And the methods many conservatives favor to discourage abortion are intrusive as well. We already have reproductive policing, to the extent that women are subjected to mandatory ultrasounds, waiting periods, and forced pro-life counseling.
There’s another argument you sometimes hear about why abortion is murder, but that women shouldn’t be prosecuted for having abortions performed. The idea is that women don’t really choose to have abortions (here is a nice, but old, illustration). They are confused, distraught, pressured by others, unaware of alternatives. Such a view meshes very well with the “pregnancy crisis center” strategy for preventing abortion; at these centers, the idea is to bring women to their senses. It also comports well with the idea that women typically suffer post-abortion regret—a common idea among conservatives.
If you’re prepared to offer a sort of insanity defense to anyone who has an abortion, then you can avoid supporting criminal prosecution. But anyone with even a modicum of respect for women will find that assessment outrageous and absurd. The many women I know who have had abortions say they made the choice after assessing all of the options, the costs and the benefits, and their own beliefs about the fetus. Pro-choice is about choice because women really do choose abortion (and choose to continue unwanted pregnancies, of course).
There are other ways to defend criminal penalties for abortion providers but not for the women they provide for. You might draw an analogy with going after drug dealers but not drug users. Or arresting “Johns” but not prostitutes. Or penalizing those who assist with suicide, but not those who attempt suicide. There are all sorts of possible parallels, but ultimately I think we’re going to have to admit that abortion is sui generis. Looking squarely at abortion, it’s very hard to fathom how it can make sense to think an abortion provider is criminally culpable, but the woman who asked for the abortion is not.
Of course, it’s a little dangerous arguing that laws prohibiting abortion should lead to criminal penalties for women, and not just for providers. Some people may bite the bullet, concluding that we ought to prohibit abortion and we should punish women. There are people currently working to pass more restrictive abortion laws who might, if they succeed, next lobby for raids on clandestine clinics and imprisonment of women receiving their services.
But considering the reaction to Trump supporting penalties for women, apparently they’re in the minority. When you admit that you don’t think women should be criminally prosecuted for having abortions, that can occasion second thoughts about what abortion is and isn’t. If it shouldn’t be criminally prosecuted, that might be for the very simple reason that it isn’t homicide. Why not? You would never even ask that question if you thought you could get away with this impossible combination: it is homicide, but it’s not to be prosecuted, except when it comes to providers.