In an article published by the Federalist last week, author Z. W. Lucow argues for the following proposition:
Is there a way to say ‘abortion is murder’ without committing oneself to punishing mothers who abort with the punishments we reserve for murderers? The short answer is yes.
As a co-author of abolitionist legislation that would criminalize abortion as murder, I would also agree that the short answer is yes—one can simply say “abortion is murder” and then make no commitment as to what punishment should be reserved for those who procure abortions. However, to say that “abortion is murder” while remaining uncommitted to the issue of punishment—or even arguing that it should not be punished as murder—is to take a stance devoid of logical and moral consistency. As such shortcomings are characteristic of many pro-life lobbyists and politicians, it comes as no surprise that Lucow begins his argument with the following observation:
When a candidate for president, Donald Trump said he would have women convicted for having an abortion. Representatives of the pro-life movement quickly distanced themselves from his position. The question is whether there is a way to say that “abortion is murder” without committing oneself to an unfortunate policy position most would prefer to avoid.
While many pro-life advocates actually argue against calling abortion murder, it is not difficult to understand why those consistent enough to at least call abortion murder are nonetheless loath to advocate punishment for those who procure abortions.
Simply put, we live in a feel-good society. Generally speaking, Americans send money to support things they feel good about. Americans feel good about helping save the environment, adopting forlorn canines, and feeding hungry children. Some Americans even feel good about ensuring that cute, cuddly babies can’t be dismembered after they have the ability to feel pain. Americans feel good about such causes, and providing financial support gives them a way to feel good about helping others in the midst of their otherwise materialistic and self-serving existence.
Donating money to help rescue animals or feed hungry children gives Americans a good dose of warm fuzzies. Saving babies from being murdered gives pro-life Americans a good dose of warm fuzzies. But saying that women who have abortions should be punished as murderers is very controversial and unpopular. It doesn’t give anybody warm fuzzies. But in the world of charity, warm fuzzies mean donations. No warm fuzzies, no donations. And no donations, no cushy job as a pro-life lobbyist. And if you are a politician, repeatedly saying controversial and unpopular things is a fast track to a short political career.
As it currently stands, we live in a culture full of people who care more about getting their warm fuzzies than about establishing justice for the most helpless and innocent members of our society, who are being slaughtered 3,500 times a day under the covering of “law.” Moral and logical consistency takes a back seat to making sure than no one gets offended. And heaven help us if someone were to get triggered! That would simply be the end of the world.
We are one nation under the tyranny of warm fuzzies. You can do and say whatever you want as long as you don’t make others feel bad about themselves. Logical and moral consistency has no place in such a world. And as such, it is no surprise whatsoever that a sizeable segment of American society wants to opine that “abortion is murder” without taking any actions whatsoever to effect its punishment as murder.
While inconsistency may be the hallmark of contemporary moral and political discourse, Lucow does not acknowledge any inconsistency in his position. On the contrary, his article is essentially a long argument to the effect that his position is consistent. While I devote the rest of this article to a refutation of that argument, I do appreciate the fact that an actual argument was made, even if it is ultimately an exercise of reason in the service of irrationality.
“Moral Thinking” vs. “Legal Thinking”
Lucow begins his argument by separating the legal and the moral in an attempt to parse different senses of the word “murder”:
The problem with this pro-choice argument from legal consequences, which I will refer to as the legal argument, is that it conflates two senses of the word “murder.” The first is the moral sense of the word. In this sense, the word means a wrongful killing. The second is the legal sense of the word.
This is correct insofar as it goes. What is commonly called “murder” in popular discourse has a range of specifically-disambiguated meanings under law. Abolitionists do not object to pointing out this fact. We do object, however, to any attempt to separate law from moral judgment and analysis. Lucow attempts to effect such a separation by claiming that moral language is inadequate to properly address the issue:
Legal language is far more robust than moral language. It allows for subtle distinctions not available in moral discourse. In moral language, murder is the catchall term for all wrongful killing. The most closely analogous term in the legal language is culpable homicide. Even here, however, the words are not perfectly analogous. For Jews and Christians, murder encapsulates all wrongful killing because the only consideration in a moral language is right and wrong.
And again, on the same theme:
As a result, when a moralist uses the term murder, a legal thinker should interpret that term as sharing a loosely common meaning with the most general analogous term within their own vocabulary… The moralist uses his language to appeal to legal authority. That does not mean legal thinkers should feel at liberty to disregard the difference between their own and the moralist’s language. Contrarily, legal thinkers should feel a burden to act as a translator.
Lucow appears to be more familiar with law than with either philosophy or Christian theology, and such unfamiliarity may serve to explain some of the more absurd statements in the two preceding quotes. Consider first the claim that “for Jews and Christians, murder encapsulates all wrongful killing because the only consideration in a moral language is right and wrong.” While such a claim may hold true for cultural Christians or shallow-thinking churchgoers, the murder-manslaughter distinction actually predates any Western common-law system by well over 2,000 years in the Old Testament, a “holy book” for both Jews and Christians.1 And if any book would be symptomatic of a “moral language” in which “the only consideration is right and wrong,” it would be a holy book of Jews and Christians, right?
So what exactly is the author of Deuteronomy 19 doing when, in the context of wrongful killing, he specifically distinguishes between killing with intent and killing without intent? Is that legal language in the holy book of people who only speak the so-called moral language? I thought Christians were incapable of making such distinctions, because our only categories are “right” and “wrong”? Say it ain’t so!
Sarcasm aside, this rather humorous exercise illustrates a more fundamental flaw in Lucow’s reasoning—namely, a category error to the effect that moral and legal language are incongruous. For Lucow, both languages are incompatible, and one must be translated into the other. But because the legal language is superior to the moral, the translation can only go one way. This being the case, legal thinkers should be the better men and condescend to translate the inchoate babblings of those primitive moralists.
Now, there is a kernel of truth to Lucow’s assertions. Legal language is much more precise than the language of the average pro-lifer who says that abortion is murder. However, to go beyond this and imply that the two are incompatible is simply wrongheaded. To see how this is so, one only needs to examine the uses and functions of indicative and deontic language.
An indicative sentence states what is. A deontic sentences states what ought to be. What is and what ought to be are two distinct modalities. And understanding the differences between these modalities is essential for understanding any thoughts expressed in terms of them. Indicative statements, in and of themselves, express no moral quality. And deontic statements, in and of themselves, express no factual information. However, a moral judgment is neither indicative nor deontic, but rather is an application of some deontic principle to some state of affairs. To express a moral judgment and the reasoning behind it, both indicative and deontic language must be employed.
Legal language is essentially and necessarily indicative. It’s job is to state what the law is—nothing more.2 The law does not make statements about what ought to be.3 With respect to murder, the law says that if you cause the death of someone and such-and-such elements of the crime are present, your punishment is such-and-such. If you cause the death of someone and a different set of elements are present, your punishment is something else. The practical function of the law is simply to define crimes and their punishments in terms of a nation’s criminal justice system. While it is generally assumed that such definition of crimes and punishment expresses morality in some sense, such an assumption is neither a product of nor a valid inference from the law itself.
Indeed, some laws are considered unjust. And the fact that certain laws are considered unjust serves to illustrate the difference between law and moral judgments about the law, which further serves to illustrate the difference between the indicative and the deontic.
Now, Lucow wants to separate legal and moral language. But if law is to be considered moral in any coherent sense, then the dialogue between law and morality cannot be a one-way street. If lawmakers attempt to model the moral values of their society, then they must attempt to encode those values into appropriate definitions of crimes and punishments, as Lucow himself argues. However, the process does not end there, for lawmakers may very well fail at this task, and it is up to society to judge the moral value and effect of the law and demand further changes as necessary.
As such, the whole argument that the discussion of appropriate legal punishment for abortion should occur only among the “legal thinkers” is wrongheaded. And moreover, it is self-defeating. “Legal thinkers” may attempt to translate morality into law, but any such attempt also renders them ipso facto moral thinkers. It is well-nigh impossible to work on a task without forming an opinion of some sort as to whether or not one’s work product actually meets the requirements of the task at hand. And insofar as the task of the lawmaker is to translate “moral language” into “legal language,” no lawmaker can judge the quality of his work without making a moral judgment about his work product.
So where does this leave the relationship of so-called moral and legal language? First, we must recognize that every act defined in law has a moral value. If a particular legally-defined act is morally ambivalent, then the fault probably lies with the lawmakers for not making a distinction between two similar or related acts that are not morally ambivalent. And contrary to the picture painted by Lucow, “moralists” are perfectly capable of using these legal terms in moral discussion, should it be necessary to do so.4 After all, “moralists” who make moral judgments regarding the law become ipso facto “legal thinkers” and should use appropriate terminology and distinctions when necessary.
Second, we must recognize that the legislated punishment for each act also has a moral value vis-à-vis its appropriateness to the crime. “A man who intentionally shoots another man in the face should not be sentenced to just community service” is a perfectly valid deontic statement, which induces a moral value when applied to any actual or hypothetical legal code specifying such a sentence for shooting a man in the face.
Now, the fact that laws admit of moral judgments does not mean that there is societal agreement regarding said judgments. However, it does make Lucow’s distinction between “moral thinkers” and “legal thinkers” completely irrelevant as anything more than a general admonition to use legal terms when necessary when making moral judgments about the law.
Defining Abortion as Murder
Most abolitionists may be “moralists” by Lucow’s definition, but when they say that abortion ought to be punished as murder, they mean first degree murder. Such a distinction is usually not necessary to make, but abolitionists do make that distinction clear when necessary.
Before getting to abolitionist reasoning as to why women who procure abortions ought to be punished for murder, let us consider Lucow’s reasons for his conclusion to the contrary:
This argument turns on the presumption that there is a substantive distinction between legal murder and abortion. This distinction must be such that legal murder and abortion can both fit under the moral sense of murder. There must, however, be something about abortion that triggers our intuitions that a woman who seeks an abortion is not criminally culpable in the same way as a person who commits a legal murder.
It all boils down to “intuition.” Or in other words, feelings. Because such punishment feels extreme, we have to fabricate some justification for being inconsistent by refusing to administer it.
Now, moral intuition can be a guide to creating necessary legal distinctions, if those distinctions themselves are morally consistent. As God has written his law on the hearts of all men,5 that even non-Christians can have accurate moral intuitions should not be surprising. However, what one may construe as a legitimate moral intuition may actually be nothing more than irrational feelings masquerading as moral insight. Such false impressions may actually have the feeling of genuine moral intuition. And that is precisely why “search your feelings” is a mantra best left for the movies—the results of applying such a principle to the realm of law can be quite disastrous indeed.
Now, Lucow might appeal to the vast majority of pro-life leaders who seem to share similar feelings as evidence that his feelings about punishing women are actually genuine moral intuitions. Such an appeal, were it to be made, would simply be an instance of argumentum ad populum. History is replete with examples of injustices that were accepted as moral by the population at the time. There is a reason why we are commanded to not go with the multitude to do evil.6
Lucow attempts to bolster his foundation of moral intuition:
Positing such a distinction is well within the norms of historical legal reasoning. The distinctions between murder and manslaughter are a largely artificial construct within the common-law tradition that America inherited. There was a time when any culpable homicide would be a capital offense.
This example, however, does not help him. Distinguishing between murder and manslaughter on the grounds of intentionality does not create any moral inconsistency. Indeed, such a distinction is demanded by the Law of God, as expressed in the Old Testament. Contrary to Lucow’s claims, such a distinction was fundamental to moral society thousands of years before the development of the English common law system.
Now, abolitionists may be simple-minded “moralists” in Lucow’s perspective, but their logic is straightforward and consistent, and does not require any ad hoc constructions to enable us to feel better about being inconsistent. It goes something like this:
- The unjustified7 intentional killing8 of a human being is murder.
- Murder ought to be punished as murder.9
- Abortion is the unjustified intentional killing of a human being.
- Therefore, abortion is murder. [By (1) and (3)]
- Therefore, abortion ought to be punished as murder. [By (2) and (4)]
The argument is valid. The only dispute can be over the premises.10 Lucow appears to accept premises (1) and (2), at least in some form. The contention seems to regard premise (3). Lucow argues that procuring an abortion is not murder, because the woman may not realize she is commissioning the murder of a human being:
I propose that the distinction between abortion and legal murder is one of knowledge. Abortion is legally permissible, socially condoned, and culturally promoted. To propose that such facts will not put strange ideas about the nature of an unborn child into reasonable people’s minds is faulty. Tragic as it is to say, in a world where such forces operate on a young woman, her belief that abortion is justifiable is not unreasonable.
To defy the weight of culture takes tremendous work. Even people born into families that honor the value of human life need to arm themselves with every resource they can to fend off novel and false moral visions. Once such people take on the task of committing themselves to truth, there is no guarantee that in their pursuit they will not be led astray by some strange and provocative line of reasoning.
However, for all of his claims regarding law and “legal thinking,” Lucow ignores a fundamental principle of our legal system: ignorantia legis neminem excusat—ignorance of the law excuses no one. If abortion is made illegal, then it matters not at all what individual mothers happen to think about the humanity of their preborn children. The law is public, and all residents of the jurisdiction are responsible to learn it and abide by it. And does Lucow really think that given the massive cultural shift required to pass such a law, its passing would go unnoticed by millions of abortion-minded mothers? The passing of such a law would be the legislative story of the century. It would go down in history not unlike the 13th, 14th, and 15th Amendments. There would be no ignorance of the law to worry about in the first place. Everyone would know about it, because everyone would be talking about it. There wouldn’t be a woman to be found who would be able to legitimately claim in court that she did not know that her self-induced or “back alley” abortion11 was against the law, not that it would matter in court if she did make such a claim.
Now, let us return to the principle of ignorantia legis neminem excusat. Ignorance of the law does not excuse because the law exists to establish justice in an objective sense, before both God and man. Whenever a human being is killed, God demands an accounting, and his fellow man in society is responsible for ensuring that such an accounting is given. The law exists to both protect the victims and serve justice on their behalf. Justice is aborted when we let our feelings for the perpetrators overshadow our societal duty to avenge their victims through due process. The absurdity of showing partiality in such a way is illustrated by the following example.
Suppose, hypothetically, there are cannibals living in some part of the world where cannibalism is seen as a normal part of everyday life. Suppose that some of these cannibals move to the US, and kill and eat some born people. Now, using Lucow’s reasoning, these cannibals should not be punished as murderers. After all, the distinction between cannibalism and legal murder is one of knowledge. In their homeland, cannibalism is legally permissible, socially condoned, and culturally promoted. To propose that such facts will not put strange ideas about the nature of a human being into reasonable people’s minds is faulty. Tragic as it is to say, in a world where such forces operate on a young cannibal, his belief that eating someone from a different tribe is justifiable is not unreasonable. Defying the weight of culture takes tremendous work, and there are some cannibals that obviously aren’t up to the task.
But on Lucow’s reasoning, you don’t even need to be born and raised a cannibal to not be punished as a murderer for cannibalism. Even if you were born and raised here in the US, you might run into a cannibal one day. And rather than eat you, he might talk to you and try to convince you that killing and eating other people is the most natural thing in the world. After all, even people born into families that honor the value of human life need to arm themselves with every resource they can to fend off novel and false moral visions. Once such people take on the task of committing themselves to truth, there is no guarantee that in their pursuit they will not be led astray by some strange and provocative line of reasoning.
On Lucow’s terms, human beings apparently have no control over what they choose to believe, and have no responsibility to seek and adhere to the truth. But it if that is the case, then what is the point of law in the first place? If people who intentionally kill other people shouldn’t be punished as such because someone might have “led [them] astray by some strange and provocative line or reasoning,” then what is the point of having laws at all? I can think of a lot stranger and more provocative lines of reasoning than the pro-choice position. And if perpetrators should not be punished simply because they have a different opinion about what it is they are doing, then we have no business punishing rapists for victimizing women. We have no business condemning Stalin, Mao, and Pol Pot for their genocides. Such people simply had different ideas about the worth of human life. Who are we to judge? If taken to its logical conclusion, such thinking leads to a dog-eat-dog world where only the strong survive—a world devoid of both law and order.
Whatever one believes about ethics, it is most absurd and self-defeating to hold an ethical view that, if consistently held and practiced, would lead to the practical destruction of all ethics other than “might makes right.” And it is most wicked and ageist to hold that the most innocent, vulnerable, and victimized members of our society ought not to be afforded the equal protection of the laws, simply because those who seek their death might have been “led astray by some strange and provocative line of reasoning.” Abolitionists believe that anyone who performs or procures an abortion after abortion is abolished as murder ought to be tried and convicted of murder in a court of law. While such a position is unpopular, it is far more consistent and demonstrably less ageist than the alternative “pro-life” positions on the matter.
- Deut. 19:1–13.
- Legal language is also arguably imperative, as evidenced by the use of the word “shall.” Under this construction, legal language can be generally subdivided into four types of statements: (1) indicative statements defining what constitutes an offense, (2) impersonal imperatives stating that such offenses shall not be committed, (3) indicative statements defining punishments for specific offenses, and (4) impersonal imperatives stating that a person committing a specific offense shall or may be punished in a specific way or ways. The precise meaning of such impersonal imperatives in a modern democratic society is not clear, as there is no one person possessing the authority of the state, such as an absolute monarch, issuing said commands. Rather, such imperatives are better interpreted as expressing the general impersonal imperative force of law itself, particularly for societies that claim to be under “the rule of law.” As a result, any such imperative statements of the form “shall not” can be converted into an equivalent indicative statement to the effect that the act in question is unlawful. As such, impersonal imperatives in modern law codes are arguably nothing more than indicative statements expressed in the imperative mood for stylistic or rhetorical purposes.
- The law generally serves a tutorial function for culture, as people develop their ideas about what is right and wrong from the law. However, any such moral inference is a use of the law, not what the law itself actually says. That people may use indicative language for deontic purposes does not make the language itself deontic.
- This is not to say that those outside of the legal profession are necessarily acquainted with the law. However, anyone mentally capable of managing their own affairs is also capable of understanding the law, given the necessary time and resources.
- Rom. 2:14–15.
- Ex. 23:2.
- That is, not as a civil magistrate bearing the sword to carry out God’s wrath upon the wrongdoer (Rom. 13:4).
- ”Intentional killing” means that the intent of the act was to kill, and that killing was not the unintended consequence of an act intended to accomplish some other purpose.
- Per Gen. 9:6 and other divine commands, this means the death penalty in a just law system. However, even in an unjust law system, any act of murder unrecognized as such by society ought to be treated as any other act that the society recognizes and punishes as murder.
- One might object that this argument only applies to abortionists themselves, or mothers who self-induce. Such a problem is remedied by adding the principle that one who procures the commission of a crime is also guilty of the crime committed, generally speaking. Such a principle is fundamental to the American legal system and is consistent with Divine Law as revealed in Scripture. Such a principle is also common sense. As a case in point, I know of no pro-lifers who would object to charging a mother with first degree murder who hires an assassin to shoot her ten-year-old son as he walks home from school. Abolitionists are simply saying that there is no moral difference between hiring an assassin to shoot one’s ten-year-old son extra uterum and hiring an assassin to dismember one’s ten-week-old son in utero.
- As abortion is illegal at this hypothetical point in history, there are no “legitimate” clinics performing them.