On a Pro-Life Argument for Legalized Abortion

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It's often said that making abortion illegal won't reduce abortion much because people will be driven to underground abortions, which are less safe and thus cause more damage than legal abortions because they also affect women's health. Suppose this is right (and suppose it didn't contradict the complaint you hear sometimes from pro-choice activists that making abortion illegal will prevent people from exercising what they think is a sacred and fundamental right to kill their fetuses). Does it follow that abortion should remain legal?

Ryan Anderson argues that it doesn't follow [hat tip: Mark Olson], and I think he's right. The argument assumes consequentialism, for one thing, or at least that any non-consequentialist goods will be irrelevant in this issue, and I don't think that's true. The pursuit of justice and punishment of those who are seriously unjust is an important enough consideration that I think the government is violating one of its most basic moral duties if it doesn't have laws against killing fetuses, and that's true even if the consequences of illegal abortion are worse than the consequences of legal abortions.

But Anderson also points out some problems with the assumption. If Roe is ever overturned, and states enact different laws on abortion, you might find underground abortions in states where abortion is illegal, but underground abortions aren't going to be a matter of course in states where abortion is illegal if it's not that hard to go across the border and get a legal abortion. It may have an effect on people without the resources to get somewhere, but those aren't the people who could pay for an underground abortion either. Also, I don't see why it should be considered an injustice against the poor simply because other people can get away with evil when they can't; it's not fair, but I wouldn't say an injustice is committed against me if I'm not allowed to rape someone when someone else is. Remember that this is supposed to be an argument to convince pro-lifers to prefer to keep abortion legal, so we have to assume, even if just for the sake of argument, that pro-lifers are correct in seeing abortion as immoral.

One other things is noteworthy about his response. He notes an eerie parallel with the kind of reasoning used by the defenders of slavery against abolition. They argued, on consequence-based grounds, that releasing slaves would be bad for the slaves. But this seems to be one case where it's very clear that there's a moral obligation to release them (and for those who put them in this position to expend a lot of resources ensuring that the consequences for them wouldn't be bad, although I don't see any parallel here unless the abortion industry can figure out how to resurrect dead fetuses). Isn't the same true with abortion, if the pro-lifer is correct that abortion is immoral?


I guess one could think that punishing women who have abortions is morally more important than saving lives, but it would seem misleading to call this view "pro-life" (rather than, say, "pro-justice").

I'm not sure I see the slavery analogy. At least, it doesn't seem remotely plausible that maintaining the institution of slavery would actually be conducive to human welfare. Anyone who argued "on consequence-based grounds" for slavery was appealing to false empirical premises, no? But legal abortion plausibly is the best institutional arrangement on consequentialist grounds. That seems a pretty important difference, for a consequentialist argument.

I never said anything about punishing women who have abortions? The standard pro-life view is that it should be illegal to perform an abortion. I don't know many pro-life people who think women should be prosecuted as criminals for seeking to have a doctor perform one, just that it should be criminal for someone to do it.

The argument was that slaves were completely uneducated, and there wasn't a lot of common wisdom supporting the possibility of educating them, at least with the plantation slaves who worked in fields. A common view was that freed slaves would have worse lives trying to support themselves than they did working as slaves. I agree that this is a false premise as a generalization (although it may well have been true of some individual cases), but it may have been pretty hard for them to have understood why it's false. So if the issue is what's plausible, are we going by what would be plausible to the people making the judgment at the time or what's plausible to others in retrospect later?

If it were illegal to have an abortion, it wouldn't be to much of a leap to imagine police setting up "sting" operations for underground market that would spring up much like they do for prostitution. That may not be what most Christians want, but I think its likely.

It did rather sound like you were advocating punishing women prevent people from exercising what they think is a sacred and fundamental right to kill their fetuses

They are killing their fetuses, right? How do you get around not prosecuting them for at least conspiracy to commit first degree murder if you're defining it as a crime this way? Is fetal murder a different degree or type of crime than postnatal murder? Uh oh.

I think you shouldn't have laws you don't plan on enforcing. If its good enough to make abortion illegal then its good enough to 'slap someone around' for doing it.

Otherwise you just invite disrespect for the law. Some people might like that but the law sure as hell shouldn't.

What I said is that pro-choice people don't want to prevent people from exercising what they think is a sacred and fundamental right to kill their fetuses. I'm not sure how the corresponding pro-life view should amount to endorsing punishing people for exercising that no-longer-legal right. The corresponding view, if it uses parallel terminology, would be that people should be prevented from doing exactly that. It does not entail punishing people for doing so.

You might find pro-life people who are interested in prosecuting women as accessories to murder or something like that, but the implicature of Richard's comment seemed to be that the women seeking abortions would be the target of anti-abortion laws, and that's not the view.

Now I do think you could view abortion laws and general murder laws differently. Thinking that moral status is present even at the very early stages of fetal or even embryonic development (and thus thinking laws against abortion are justified) does not entail that one places all abortion in the same category as murder legally. Pro-life people can easily differ on that sort of thing without becoming pro-choice.

Geinus NZ, the person doing it is the doctor. It's pretty easy to craft a law against doing the abortion that explicitly says that hiring the doctor to do this is not punishable or is punishable much less severely. There may be inconsistency worries at some points, although there are several ways to make it consistent. There shouldn't be any rule of law worries unless the law makes it illegal to seek an abortion but then says there is no penalty for it. That particular scenario wasn't one of the ones I imagined.

As you pointed out, if abortion is still legal in some states, most people could probably get one by making a day's drive.

Also, I saw someone point out elsewhere that if all abortions were illegal tomorrow, today's equipment would be on the blackmarket the next day. The "coat-hanger" scenario ignores the fact that modern equipment would still be accessible to those interested in performing illegal abortions.

Most people who could afford it could take a drive, but you have to remember that large regions might outlaw it. It's not as if every state that outlaws it is going to have bordering states that don't. For some, it might be a very long drive.

You're right about the coat-hanger point. But that does only apply to those who could pay for the use of black-market equipment.

Out-lawing abortion might also have the side-benefit of forcing people to really think about what they are doing. If abortion is not available on demand, and therefore not a ready form of birth-control, then perhaps not having sex, or at least having "safer" sex might be higher on people's agendas.

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