Trump’s Abortion Kerfuffle Raises Punishment Concern

Yesterday, Donald Trump turned some heads with an answer he gave during an interview with MSNBC’s Chris Matthews on the issue of abortion. Mr. Trump said that, in the event Roe v. Wade were to be overturned and abortion banned in the US, that women who undergo abortion should face some sort of punishment. A bit later, after a media uproar, he walked that back to say that the abortionist would face punishment, not the woman involved. However, this raises a question few have asked of the anti-choice movement. If abortion is to be illegal, just how will it be punished and who would face legal action?

To be clear, the exact language of the exchange follows. “This is not something you can dodge. If you say abortion is a crime or abortion is murder, you have to deal with it under the law. Should abortion be punished?” Mr. Matthews said.

“The answer is that there has to be some form of punishment,” Mr. Trump responded. “There has to be some form.” He demurred when Mr. Matthews asked what the punishment should be for a woman who undergoes an abortion.

The outraged response forced him to issue a clarifying statement to the Washington Post. “This issue is unclear and should be put back into the states for determination,” said the statement to The Post. “Like Ronald Reagan, I am pro-life with exceptions, which I have outlined numerous times.”

“[T]he doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman,” Mr. Trump added in a second statement Wednesday. “The woman is a victim in this case as is the life in her womb.”

Taking an extreme pro-life view, that life begins at conception, it is impossible to categorize abortion as anything but first-degree murder. There is a human victim, there is premeditation, and there are a number of accessories (the patient, the nurses, the clinic, etc.). If the crime is not murder in the first-degree, the fetus is clearly not a human being equal under the law to an adult or post-birth child. In states with the death penalty, this becomes a very different sort of debate than it has been to date.

In the event that a case can be made to treat a fetus as a lesser human, and if a special crime of aborting a fetus can be distinguished from first-degree murder, the question remains “who is legally culpable?” Following on from that is “what punishment is appropriate?”

Without a doubt, the person who performs the procedure is culpable. However, the woman involved is certainly not a “victim.” She is likely under intense emotional stress, but she is not harmed by the procedure for which she is volunteering. Being a victim requires one to be an unwilling participant in an unwholesome act. That definition doesn’t fit here.

This is an uncomfortable matter for the “ban abortion” crowd. It sounds noble, protecting the unborn. But if something is banned, it must carry a punishment if one ignores the ban. Someone needs to be punished or the ban isn’t a ban at all.

Many drugs are banned. Possession of a few grams of marijuana, though, is punished differently than possession of a few grams of heroin. The logic (to the extent that prohibition has a logic) is that marijuana is less damaging than heroin. Does an abortion in a case where the mother’s life is at stake merit lighter punishment (or any at all) than one where the mother’s health is not an issue? Is aborting a fetus a misdemeanor or a felony? What fines or jail sentences are appropriate?

Donald Trump has unwittingly put a spotlight on the anti-choice faction. If the country criminalizes abortion, just what kind of crime is it?