Fetal personhood and criminalizing abortion: a prosecutor’s perspective

In which Republican ruminations on exemptions for rape prompt an epic smackdown by a pro-choice prosecuting attorney.

I am a prosecutor and I prosecute people accused of crimes. So if we find ourselves in a situation where women who get abortions that don’t fall under one of those exceptions have committed a crime, then I’m going to be the one making the decisions about what happens next. That’s my job. And I have to say, I am more than a little bit uncomfortable about being legally mandated to prosecute other women because they have terminated a pregnancy when it is a bunch of non-pregnant people – many of whom are men who can’t even become pregnant – who don’t think her reason was “good enough” to be “legal”.

Thanks, DF!

17 thoughts on “Fetal personhood and criminalizing abortion: a prosecutor’s perspective

  1. I am a liberal who thinks abortion is probably permissible. But I am unsure because, of course, it involves the *purposeful killing of a non-consenting human being*. Many liberals are glib on the topic of abortion and cannot possibly understand how conservatives can be so cavalier in their opposition. I imagine it is because these liberals never stop to put themselves in the position of a conservative who believes that abortion is *murder* because it falls under the reasonable description of murder that I just gave. I think liberals who are glib about abortion are being intellectually dishonest and I find it incredibly grating.

    That being said, there are two things that I find odd about this post. The first is that the author being quoted opposes decisions about the legality of abortion being made by “men who can’t even become pregnant.” But if abortion is murder, as many conservatives believe, then the fact that a legislator cannot become pregnant should not be relevant to his or her ability to declare on its legality. Would the author exhibit the same hostility toward an infertile female legislator? I should hope so, at least in the name of intellectual honesty. Do feminist philosophers, legitimately upset about long having been the target of marginalization and exclusion, see nothing strange about turning the same exclusionary language on men? How is it any less objectionable to suppose that men are not qualified to discuss abortion because of a reason that grounds out in their gender?

    The second thing that is odd about the post being quoted, that should give all of us pause, is that a prosecutor has put scare quotes around the word *legal*. I’m not a Constitutional lawyer, but I don’t believe it is the business of a prosecutor to pass judgment on the laws as they exist. Rather, I suppose that whoever this person is, he or she has almost certainly taken a pledge to uphold and enforce the Constitution as well as the laws of the community in which they practice. Exhibiting such a dismissive attitude toward the separation of powers that exists in America is, to say the least, worrying and unbecoming of a prosecutor. The charge of the executive branch is the execute the laws. If this person disagrees with the laws, perhaps he or she should resign rather than wield their position as a political cudgel to take revenge on a bunch of men – who can’t even become pregnant! – who have decided that certain crimes that might be murder should be punished.

  2. Congrats to X for seeing an ad hominem where there isn’t one and then making an ad hominem himself (although I might be wrong, but I think he – both stylistically and on basis of the content, he cannot be a woman – is trying to discredit the author because of the alleged mistake he made criticizing a law he is charged to apply).

    Let me explain: the problem isn’t that they are male, but that they don’t know what they are talking about. Mentionning they are male is relevant because while women are bombarded with male narratives, men have to go out of their way to understand how it is to live a woman’s life. It’s called male priviledge – everything is made with them in mind, and they often never notice. And male priviledge makes for a particularly persistent kind of ignorance.

    As for the second point, a prosecutor has special knowledge through her experience. Although it certainly is inappropriate for a prosecutor to question laws in certain contexts, barring them from expressing that special knowledge in appropriate settings is everyone’s loss. It’s also infringing on freedom of expression.

  3. I highly recommend clicking the link and reading the whole post. OP’s argument doesn’t actually hang on the gender of the legislators/jurists. It’s much more interesting (and important) than that. I just quoted that passage because it’s a punchy teaser that brings in OP’s profession.

  4. “both stylistically and on basis of the content, he cannot be a woman”

    was this delicious bit of satire intentional or unintentional? either way, well done.

  5. The author of the linked piece seems to be approaching the questions he or she poses as though they were all “cases of first impression.” The legal regime about which she’s speculating is the status quo ante in most places in the United States for most of U.S. history. It’s still the status quo in a number of countries, including countries that share the common law tradition such as Ireland. This is an interesting feature of the debate over legalised abortion in the United States: questions about how abortion restrictions or prohibitions would be legally administered are typically asked speculatively, as though in a vacuum where we did not have available a great deal of relatively recent (in terms of legal history) precedent to shed light on them.

  6. I never knew that women wrote in a specific style or produced gender-specific content. Thank you, mokawi, for enlightening us all regarding this essential feature of women!

  7. I think X could be more charitable to the OP and feminist philosophers as a group; and mokawi could be more charitable to X in saying “Congrats to X for seeing an ad hominem where there isn’t one” and E to mokawi for “Thank you, mokawi, for enlightening us all regarding this essential feature of women!”

    X, I suggest that you search around the internet for some feminism 101 material if you feel the need to ask questions such as, “Do feminist philosophers, legitimately upset about long having been the target of marginalization and exclusion, see nothing strange about turning the same exclusionary language on men? How is it any less objectionable to suppose that men are not qualified to discuss abortion because of a reason that grounds out in their gender?”
    I suggest starting here for a definition of sexism requiring prejudice + power: http://finallyfeminism101.wordpress.com/2007/10/19/sexism-definition/
    (This should help explain how it is ‘less objectionable’ to claim that for some conversations, men should on the whole shut up about it.)

    For mokawi’s comment, I agree there are elements of an ad hominem attack within X’s comment (the OP says “other women” so it’s a safe bet she’s a women and X says her position is “unbecoming” of a prosecuter)–even if X did not intend this or mean it that way.

    I don’t see though how mokawi’s comment implies that it’s women’s essence that lead to gender-specific style and content. True, “cannot be a woman” is a strong claim here, but when you listen to these kind of debates for a while, real stylistic and argumentative patterns can emerge. We often can guess someone’s gender from their handwriting, so why not from the style and content of their argument?
    If the issue is over the “cannot,” we can point out that “probably” is more appropriate here–thought mokawi does admit to this claim being fallible–instead of charging someone with essentialism, especially when they give no other indication that they would endorse that. This is just an educated guess, but I’m going to presume that, from the rhetorical style and content of their argument, mokawi would not endorse the idea of argumentation style being an essential feature of gender.

    I know the “be nice” rule is hard when it’s “be nice–even in the face of obtuseness and the same conversational ruts and sexist slips we’ve all seen a thousand times.” And I understand the frustration that comes with this blog existing somewhere between the realms of “feminism 101” and “advanced kyriarchy blaming.” AND it’s hard when we come here both for catharsis and argument.

    I’m just going to request that no one else continue the trend of sarcastic expressions of gratitude.

  8. Philodaria, Ireland has a jurisprudential maternal-risk exception, but not, e.g., a rape exception. Of course, one would expect a U.S. lawyer to consider U.S. precedents first. At any rate, this doesn’t detract from my point, which is that the prosecutor is asking whether anyone in favor of an anti-abortion law with some exceptions has “spent even seven seconds” considering how how enforcement would (or should) be administered, seemingly without having devoted even that much time himself or herself to considering how similar laws have operated in the past (which is usually the first instinct of an experienced jurist, particularly from the common-law tradition).

  9. Logoskaieros, essentialism does arrive with the ‘cannot be’. With ‘probably is not’ instead, the comment isn’t essentialist at all. But, it says ‘cannot be’, so in fact it is essentialist. (This struck me on first reading too.)

    Whether someone’s comment is essentialist doesn’t depend on whether the author would upon reflection endorse essentialism. Imagine (and I know this is a stretch!) a male philosopher telling me, “Oh, my comment wasn’t sexist, because I do not in any way endorse the implication that women are less able to do philosophy than men.” Uh, yep, heard that one.

    I do kind of think X is missing a big, huge point, though. It’s true that *if abortion is murder* then nobody’s gender disqualifies him from having an informed opinion. But it’s only murder if the usual philosophical arguments (like Judy Thomson’s) fail. So the prior question is whether women have the right to control their own bodies *in cases in which they have been raped*. Now try your argument again, X. Looks very different.

  10. I think that reflective pro-lifers are aware that the practical problem of how the law would view women who have abortions poses a great hurdle for their position. The general public, whether pro-choice or not, will have a very hard time treating women as murderers – say, with long jail sentences or worse – even though the pro-life view seems to entail this.

    So, the common response from pro-lifers is to focus on the doctors. Abortion providing doctors may get the long jail sentences, but abortion seeking women are to be viewed with sympathy, and so on. This has been stated pretty clearly by people like Rep. Peter King (R) of NY. I believe Arizona tried to pass legislation last year criminalizing providers involved in abortions based on race and sex.

    It hardly seems consistent, from a pro-life prospective. If I solicit murder by hiring a hit man, both of us will go to jail. It’s just a PR fudge by the pro-life camp to make their position more palatable to a (rightly) dubious public.

  11. Ajkreider, I’m not sure we can accurately characterize this as a “PR fudge by the pro-life camp”. Focusing on the doctors was the general position of most abortion criminalization statutes prior to Roe v. Wade (they tended to view the mothers as additional victims), and even under those statutes that criminalized the mother’s participation in her own abortion procedure, the number of prosecutions of women under those laws (as far as I have been able to determine), nationwide, could be counted on one hand going back to the turn of the last century. So this seems less a crafty “response” from the pro-life camp than a recognition of how such laws have generally operated in the past, which seems like a fairly reasonable point of departure for assessing how they would likely work in the future — entirely apart from the question of the merits or morals of such laws, naturally.

    This ties into my earlier comments: it doesn’t seem accurate to suggest that there is a huge *practical* problem with how the law would view (or determining how the law would likely view) women who have abortions under a hypothetical regime that recriminalized the procedure in all or most circumstances. Again, these questions are not raised in a vacuum; society has a good deal of collective experience with the practical administration of such laws.

  12. Nemo I don’t understand how the fact that historically women procuring abortions have been viewed as victims and so were generally not prosecuted shows that *continuing* that policy in the future is not a PR fudge. So in the past for clearly sexist reasons–“poor silly women can’t possibly know what they want to happen in their own bodies; they’ve been duped by the evil doctors (who at the time were almost completely male) telling them they don’t have to stay pregnant when they don’t want to be”–women have not been prosecuted. So how does that explain why we ought to keep not prosecuting them in the future? Is the suggestion that anti-abortion folks today *still* believe the sexist story that women who choose not to continue a pregnancy are just victims–too weak or vulnerable or easily influenced to make up their own mind and be held responsible for their own actions? (I would think the fact that many abortion doctors are now women would also complicate this. How can a woman be a victim when she procures her own abortion but an evil mastermind when she performs someone else’s abortion?)

    Regarding X’s post, isn’t it equally true that most supporters of gay rights have never put themselves in the position of a conservative who sincerely believes that gayness is an inherently disordered trait and legitimizing same-sex relationships will undermine the entire fabric of society. Most non-racists never put themselves in the position of those who sincerely hold racist beliefs either. But so what? Generally it is extremely difficult to “put oneself” in the position of believing something that is antithetical to everyone one has ever experienced about the world. The idea that a fertilized egg or very early embryo is morally equivalent to me or you* is just as absurd given everything I ever experienced (such as being pregnant and having had a late pregnancy loss) as is the idea that gayness is inherently disordered and undermining of society or that blacks are inherently inferior to whites. Sure I can try to imagine what it would be like to believe those things, but they still remain just as absurd to me. Does that make me “glib” about anti-racism or gay rights that I am unable to take seriously moral views on those topics which I find absolutely absurd?

    * I would add also as an earlier poster did that even the notion that a fertilized egg or very early embryo is morally like you or I is not enough to get to the conclusion that abortion ought to be illegal. There is still the issue of whether a woman owes it morally to a fetus to keep it alive for 9 months and whether the government ought to be able to compel her to do so with her having no choice at any point in the pregnancy. Again, I find it extremely difficult to understand how others really believe that women owe this amount of work, pain, sacrifice, etc. to another being–even one who is morally equivalent to you or I–in such a strong way that the government would be without question justified in using legal coercion to ensure that women make good on that obligation.

  13. Anonymous,

    If I implied above that that the fact that historically women procuring abortions have been viewed as victims of the practice *fully accounted for* the fact that they were not generally prosecuted, then I went farther than I intended. There are independent prudential and pragmatic grounds that would be sufficient to account for why the doctor (or other person) and not the mother was historically pursued at law, and I expect that most of those grounds would probably still obtain if abortion were re-criminalised (and I expect this is borne out in at least some jurisdictions where abortion is currently criminalized). It reflects a general social judgment about where, *if* abortion is against the law, it is most prudent to allocate the burden of compliance with that law: on the presumably dispassionate members of an already highly regulated profession, or on their patients?

    Also, it may be that viewing at least some portion of women who undergo abortions as being, in some significant sense, victims, entails sexist reasoning, but I disagree that this is clearly or obviously necessarily the case.

    Would we say that the contemporary women who argue that the practice of abortion tends to victimise the mothers are themselves “poor silly women who have been duped” into believing something that is “clearly sexist”?

    At any rate, regarding a “PR fudge”, perhaps I’m just not clear on what criteria you’re applying to determining whether something is a “PR fudge” or not. What are they?

  14. I wish I had something concrete to add to this discussion other than it reminds me of the research on how participants view date rape depending on the situational factors (example: did she protest? did he buy her dinner). I found the author’s framing quite intriguing, it is all about ‘pro-their-choice’ rather than ‘pro-her-choice’. To Anonymous (#13): Bravo for saying exactly what I was thinking in a far more eloquent way than I feel that I could. My addition would be to say that fertility clinics that keep frozen embryos are going to face some pretty stiff penalties if fertilized eggs achieve personhood.

  15. Anonymous, rest assured that I’m not leaving you hanging. My response to your question is just stuck in moderation for some reason.

  16. Men should stay out of women issues. Men do not know what it means to have a baby you do not want and can not afford to keep.

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