Morality and Law

Donald Sensing finds a particular attitude about abortion to be "[c]hilling". The attitude in question is pointed up in this article. While there is more to the article than just the excerpt Rev. Sensing uses, I will use the same one, as it points up the thesis of the article:

"I think abortion is killing a life. [But] the person who is pregnant should decide whether to do it or not." ...

Ms. Flores’s attitude is deeply troubling, especially when you realize how widespread it is. Over and over again, people at the march made similar comments—the kind of comments that make your hair stand on end. The political debate is changing among activists on the ground. They’re now willing to admit that abortion is killing. But they’re arguing that their right to do what they want, without restraint, justifies that killing.

What we are seeing, of course, is the logical consequences of the desire for personal autonomy in an era of moral relativism. People can say with a perfectly straight face and without a twinge of conscience, "Yeah, it is wrong. It is murder. But nobody is going to tell me I can’t do it."

Actually, the protester did not claim that abortion is "murder"; that claim is by Mr. Colson. Instead, she claimed abortion is "killing a life". There are more ways of killing than just murder, as a legal matter. Murder is specifically an intentional, unlawful killing (ok, it's more technical than that, but that's the gist of the definition).

Since I happen to share the belief that abortion is morally wrong, but should not be illegal (generally), I'm willing to defend it. But first, a note about law. The law is not a moral instrument; it's purpose is not to compel ethically- or morally-upright behavior. Instead, it is the purpose of law to prevent anarchy and its inevitable conversion to tyranny, by providing a mechanism of settling disputes and enforcing contracts which does not require the private use of force. Since the law imposes behavioral constraints by force (the force of arms wielded by the government), it is wise to limit criminal law's reach to only those areas where there is a tangible victim, a tangible harm, and a tangible perpetrator; and civil law's reach to only those areas where there is a tangible plaintiff, a tangible defendant, and a material or contractual cause of action.

Abortion, in certain circumstances, fails the first test. That is, if the abortion occurs before the foetus is able to live outside the mother's body¹, who is the victim? The child, who is killed, or the mother, who is compelled by force to carry a child she doesn't want, and to risk her own life in delivering the child? Since it's not clear who the victim is, it would be unwise to make abortion an issue of criminal law. Once the child can survive outside the mother, the situation changes, because the risks to the mother from c-section delivery (the riskier method) of the child and from the putative abortion are similar enough that there is now a clear imbalance of harms and thus a clear victim, the unborn child. If the government is allowed to criminalize any behavior it finds morally reprehensible, it could criminalize something as personal as private prayer at school. Hmmm...maybe this concern is moot.

Abortion also fails the second test, that of civil law, if the government attempts to use civil law to abolish abortion. Who would sue? Who would be the plaintiff? The government should not sue on behalf of putative victims, because the government should be neutral in civil matters. If the child's father were to sue, or if someone else could show cause to sue, that would be fine by me, but I don't want the government intruding here, lest it then decide to sue me because I called someone an epithet. (Of course, it should be noted that our tendency to invite the government into all aspects of our life has borne such fruit that we can now be taken to court by the government for complimenting someone when they didn't want the compliment, so this may be moot.)

Anyway, ignoring the fact that we've already given too much latitude to the government to abuse us via the mechanism of criminal and civil law, there is a clear legal difference between abortion (under some circumstances) and murder. There is no moral difference.

As a result, I could not stand by and let my wife have an abortion (should she be so inclined), but I do not feel that I have a sufficiently compelling interest (nor that any body of people do) to compel a woman by threat of imprisonment and impoverishment to not abort her baby. Abortion is immoral, but should not be illegal.

¹The rule I would tend to use for "the foetus is able to live outside the mother's body" is the gestational age where 50% of babies would live, assisted by current medical knowledge and capability, which has been steadily getting earlier as time goes by, but in any case is a quantity resistant to falsification or political manipulation. There are other reasonable measures, though.

Posted by Jeff at May 5, 2004 10:00 PM | Link Cosmos