by Sherry F. Colb
In my column for this week, I examine Donald Trump's statement that he would punish women for obtaining an illegal abortion. I suggest that while this position (which Trump rapidly retracted hours after articulating it) is out of step with the quasi-official Republican approach to abortion in the U.S., it is arguably more logical than the position that the typical Republican politician takes, namely, that abortion ought to be a crime but that women who have abortions should not be punished for doing so. I propose a two-part approach for making sense out of this position.
In this post, I wish to compare the Republican position on abortion (i.e., ban it but don't punish women) with common positions that people take on two other issues in which a perpetrator is arguably better characterized as an innocent victim, physician-assisted suicide and drug addiction. My goal here is to assess whether the abortion situation might map onto the other two and thereby help justify the prevailing Republican position.
In the case of physician-assisted suicide, the person who solicits help in dying is a patient. To the extent that physician-assistance in dying is illegal in the jurisdiction, as it is in almost all jurisdictions in the United States, the person who will be held criminally accountable for a successful suicide is the doctor rather than the patient. That is, even though the doctor is responding to market demand on the part of the patient, our law (and our society, as a moral matter) blames the doctor (if it blames anyone) for helping a patient commit suicide, rather than blaming the patient himself. This is because we view the patient as vulnerable and compromised by some combination of physical and emotional pain, so that responsibility for what happens rests with the person with greater agency in the situation, and that person is the doctor. This is also why suicide is more generally not a crime--we tend to view the suicidal person as a victim rather than as a perpetrator in his own suicide. It is, of course, possible to fault neither the doctor nor the patient when a doctor helps a patient to commit suicide, because one believes in the justice of physician assistance in dying, but we'll put that position to one side for purposes of this exercise and assume--as the law in most states does--that someone has done something wrong when a doctor helps a patient to end his life.
Drug use and addiction provide another example of a situation in which the person expressing market demand for a service is not the one who is held to bear primary responsibility for the putative wrongfulness of his actions. When a person uses narcotics and becomes addicted or dependent upon the drugs, our law regards this behavior as wrongful (and does in fact punish the user for possession). However, the law considers the supplier (the drug-dealer) to be far more blameworthy than the user in the transaction through which the drugs are supplied. Again, like the suicidal patient, the person who finds himself dependent on illegal drugs is understood to be vulnerable and compromised in a manner that mitigates (or perhaps, on occasion, even eliminates) any culpability or responsibility for the wrongdoing involved in acquiring drugs. The supplier, by contrast, is thought to be responding simply to market incentives (rather than to internal pain and distress) and accordingly stands fully culpable for his actions.
Where does abortion fall within this scheme? If abortion is like these other cases, then we would say that the prevailing Republican position on abortion makes sense: the real culprit in abortion (to the extent that one views abortion as wrongful conduct) is the provider, the one who is responding to market incentives and demand on the part of the patient. The patient, by contrast, is the compromised person who is vulnerable and correspondingly less accountable for her actions. The problem with this parallel is that aside from the abortion decision itself, we do not generally view the actions of pregnant women as the product of compromised agency in the way that we do with respect to the patients who seek aid in dying or the drug users who seek narcotics.
Pregnancy generally does not mitigate unrelated wrongful behavior in the way that serious illness or a drug addiction might, and we do not tend to regard pregnant women as having less agency generally than non-pregnant persons (in the way that we do for patients seeking assistance in dying or drug addicts). Indeed, when a person seeks to end his life or to acquire illicit drugs, our presumption is that the person is highly vulnerable and in need of protection. Stated differently, even in an unrelated context, if we were to encounter a person seeking assistance in dying or seeking drugs for a dependency or addiction, we would attribute less responsibility and agency across the range of choices that person might make, but the same would not be true for a pregnant woman (outside the context of pregnancy-related decision-making). At the same time, abortion providers are ordinarily people committed to the cause of reproductive choice (and ready to bear the considerable costs and risks of that commitment) rather than simple market actors responding to demand.
Overall, it does not seem that the analogy to the physician-assisted suicide and drug dependency contexts faithfully captures the position that Republican politicians tend to take regarding abortion. Calling the provider the "bad guy" in the way that one might call the drug dealer the bad guy in the addiction context seems inaccurate and inauthentic. For that matter, the same arguably holds true for the doctors who help patients end their lives. Though the patients there will indeed be viewed as highly vulnerable people in need of protection, the doctors are often compassionate people dedicated to patient autonomy and the relief of suffering rather than market incentives. It may be, then, that the dominant pro-life position in the United States, holding that abortion should be banned (except in some circumstances) but that women should be spared any judgment for terminating, is more difficult to justify than other special cases in which the "seller" is viewed as more culpable than the "buyer" of services. We may therefore need an alternative account of this position on abortion to make sense of it. For such an alternative account of this position on abortion, see my column on the subject, referenced in the first line of this post.