Benjamin Studebaker

Donald Trump recently claimed that abortion should be criminalized and that the women who get them should be punished:

Establishment republicans immediately pounced, claiming that only abortion doctors should be punished, not the women who seek them. Trump uncharacteristically backpedaled on the comments soon afterwards:

If Congress were to pass legislation making abortion illegal and the federal courts upheld this legislation, or any state were permitted to ban abortion under state and federal law, the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman. The woman is a victim in this case as is the life in her womb. My position has not changed–like Ronald Reagan, I am pro-life with exceptions.

This whole controversy is being covered very poorly. There’s more to this than “Trump said something outrageous again”. Let me unpack it for you.

Trump’s abortion position is part of his long con–he is determined to convince republicans that he is one of them, despite a long history of center-left positions. We know that Donald Trump is, in his own words, “very pro-choice” in every respect:

Trump would have you believe that he changed his mind about abortion. But his answer the other night shows that he hasn’t bothered to read up on his new side’s positions. Anti-abortion activists are frequently accused of being hostile to women. They try to counter this by claiming that only the doctors who provide abortions should be punished, not the women who get them. Trump doesn’t know this because he has not spent any time involving himself with the anti-abortion campaign. He doesn’t read its literature. He doesn’t care about the issue.

But there’s another question people aren’t asking here–why did Trump assume that abortion opponents would approve of punishing the women? The answer is that Trump’s position is the one that is actually consistent with the core beliefs of the anti-abortion movement. The claim that only the doctors should be punished is made for political expediency and doesn’t follow from the premises that form the foundation of the anti-abortion position.

This is how a standard anti-abortion argument works:

1. A human being comes into existence at conception.
2. All human beings are moral persons, irrespective of their capacities (e.g. ability to survive outside the womb, feel pain, have self-consciousness, etc.).
3. Terminating the life of a moral person is murder except in certain exceptional cases (e.g. potentially self-defense, just war, capital punishment, etc.) where the killing might be considered justified.
4. Abortion is not one of these justified exceptions.
5. Therefore, abortion is murder.

In abortion debates among lay people, #1 is often challenged and the debate becomes a scientific question about what makes a being a human, but we cannot derive an ought from an is–scientific questions do not have bearing on normative moral questions. The descriptive fact that a being is human is not the same as the normative claim that a human has moral value (i.e. that it is a “moral person”)–you need a normative argument for the latter. It is possible that human beings do not necessarily have moral value, or that beings that do not count as human may nonetheless have value. In short, arguing about #1 is a red herring, it’s a waste of time.

So many moral philosophers will challenge #2 instead. They argue that moral personhood requires some additional capacities that some humans lack, such as the ability to feel pain, self-consciousness, the ability to reciprocate, any number of things. They’ll also argue that these capacity requirements allow us to pull the plug on people in persistent vegetative states. Different philosophers set the capacity bar at different levels. If feeling pain is sufficient, then abortion might be banned after a certain point in the pregnancy when the fetus begins to feel pain. Some radical philosophers point out that we would kill and eat animals at comparable levels of consciousness to human infants, and therefore claim that we must either renounce killing animals or permit infanticide in some cases.

Politicians like to challenge #4, claiming that abortion is self-defense if there is a threat to the life of the mother and/or that women have a right of bodily autonomy that creates an additional exception that abortion opponents do not recognize. Politicians go after #4 because it can be expressed in women’s rights terms (i.e. “it’s her body and her choice”) that allow them to present their opponents as hostile to women. This is why people who challenge #4 often call themselves “pro-choice”. Personally, I think the challenges to #2 are more interesting, but if you prefer challenging #4 there are certainly some theorists who will back you up.

But for our purposes today, I want to talk about the implications of #5. If you really, truly think that abortion is murder, then everything Trump said follows. If you hire an assassin to murder somebody, both you and the assassin have committed a crime. If abortion is murder, then abortion doctors are assassins and women are the people who hire them. Under US law, both the contract killer and the person who hires the killer are guilty of murder. Negotiating and paying for a contract killing is attempted murder, even if the murder is not carried out. In some US states, people who hire contract killers can face the death penalty. In many jurisdictions, solicitation to commit murder is also a crime punishable with multiple years of imprisonment. This means that you go to prison merely for offering someone compensation to commit a murder, even if no one accepts your offer.

If abortion is murder, then it clearly follows that women who solicit the services of abortion doctors are soliciting the services of contract killers–legally, they should be incarcerated for multiple years. Women who pay abortion doctors, even if they do not carry out the abortion, should legally be charged with attempted murder. Women who get illegal abortions should legally face life imprisonment or execution, depending on the laws of their state.

Abortion opponents deny this because it is political suicide to affirm it, but it clearly follows from their views. Donald Trump gave the answer that seemed to make sense to him given the other things he had said about abortion. This is how he screwed up–he expected abortion opponents to follow the internal logic of their own position, when in reality they have deliberately distorted that position and introduced inconsistencies into it to render it more politically appealing.

Obviously if abortion is murder, we should punish the women. We don’t punish the women and shouldn’t punish the women because abortion is not murder because the standard argument against abortion doesn’t work. Either #2 is false, #4 is false, or both #2 and #4 are false. The republican politicians and anti-abortion activists who are pretending that punishing women is not entailed by #5 are deceiving either themselves, the public, or both at once.