Crime? Punishment?

Posted: Nov 20, 2007 12:01 AM
Crime? Punishment?

A perplexed citizen in Greenwich, Conn., writes to his local newspaper saying that the anti-abortion movement suffers from the absence of a comprehensive position on the practice. He believes that the Catholic bishops, working en banc, have a responsibility to declare publicly that the church is not asking for any law that would make abortion a criminal offense: "Would it not be advisable for Catholic bishops to make it clear that they are not urging criminal penalties for abortion? This would assist them in their efforts to persuade Catholics and others for their moral position. And allow Catholic politicians to take such a position so long as they do not advocate in favor of abortion from a moral standpoint."

The problem with this is that laws prohibiting behavior but failing to punish offenders lack the indispensable leg that gives solidity to a three-legged stool. Such laws are like playthings for surrealist painters, whose license to depict unreality is not questioned. The result is a kind of moral confusion that inhibits meticulous thought.

Loose yourself from the prison bars of syllogistic thought by citing the obvious difficulties:

1. Most abortion opponents persuasively argue the question on the understanding that abortion is a weighty matter. One begins, then, by insisting that it is not to be spoken of as a mere traffic offense.

2. Even if Roe v. Wade were overturned, no one (well, practically no one) is prepared to recommend a punishment approaching the gravity of the offense. If abortion were once again a crime, but practitioners did not face heavy penalties, then you have emasculated the sanctions you are willing to invoke in pursuit of the law. So -- the woman goes free and unharried, the doctor also goes free but, in some communities at least, there are sanctions out there that prompt him not to advertise himself as the corner abortionist.

3. Laws that seek enforcement have to appeal to moral consciences. If they don't, the enforcement becomes formalistic -- and, eventually, the law becomes a dead letter. The dilemma of Prohibition is illustrative. The law was there, indeed it was flagrantly there in the form of a constitutional amendment that forbade the sale of liquor. The community would endorse law enforcement that closed down bars and even imprisoned the occasional smuggler. But Prohibition never reached the authority of true taboo. Nobody objected if, at the wedding party, you came upon a little champagne.

Now the courts confront shadings and equivocations. Pro-abortion groups sued to force anti-abortion groups to stop running "Wanted" posters of "Deadly Doctors" on their Web sites after one of those doctors was shot and killed. The courts are asked why the abortion protesters can't plead the First Amendment. And a candidate's position on abortion becomes an important item in his political dossier. This is reflected in the latest figures on the voting public. Thirty-four percent of voters think abortion should be generally available, 39 percent believe that restrictions on abortion should be tightened, and 25 percent believe abortion should not be permitted at all.

Divorce has been the rounds. Early in the lifetime of modern readers, one could not get a divorce from a spouse unwilling to dissolve the marriage in many states, and in some states, such as New York, divorce was difficult even if both spouses were willing. Now divorces are relatively easy, and where there is no contention between the parties, they approach simple clerical exercises, in the direction of "I divorce you, I divorce you, I divorce you," which is all the ritual required under Muslim law for a husband to end a marriage.

We are far away from a society that attaches zero importance to granting the protection of the law to the unborn fetus. But both sides in this argument could contribute to peaceful democratic exchange by saying what it is they would not do if in power.