Magistrates managing the madness of murderous murderess mothers
April 13, 2016 § 60 Comments
Conservative writers continue to confirm that the mainstream pro-life movement views (and has for some time viewed) women who procure abortion as, categorically, innocent victims. Mother Theresa observed that a murderess murders her conscience in addition to her victim, and the pro-life movement has perverted this act of conscience-killing into exoneration. This is a narrative you may recognize: sure the behavior she chose was objectively abhorrent, but through the magic of inscrutable subjectivity we can presume her subjective victimhood. Because we can’t know anything about whether she is subjectively guilty or innocent in the invisible Cartesian theater of the mind we are justified in concluding that she is an innocent victim in the invisible Cartesian theater of the mind. Christ’s admonishment not to judge the inner state of her soul translates into a license to declare that the inner state of her soul trumps her chosen behavior. Judging the inner states of souls is actually just fine — as long as the conclusion is that a woman who procures abortion is subjectively innocent.
Dump trucks filled with exceptional cases where murder goes unpunished are rhetorically deployed to turn special pleading into a general principle. (Obviously, just to take one example, if abortion were treated legally like a kind of murder that would not alter the double-jeopardy exception: someone who had been tried and found innocent could not be re-tried even in the face of new evidence).
Beneath it all is – precisely as I have suggested – a belief (or, equivalently from my standpoint, actions and words perfectly consistent with the belief) that women are not fully adult and responsible moral agents when it comes to abortion.
we will treat women who go outside the law to end their pregnancies the same way we treat people who attempt to commit suicide. We might mandate that they get help, in the form of counseling — instead of leaving them to face the crushing guilt without support
One flaw in the suicide analogy is that attempted homicide is not the same as a successfully completed homicide. But I can work with that, I suppose.
Therefore I suggest a compromise: the pro-life movement can reach consensus to treat women who procure abortion the same way we treat other severely mentally ill people who have successfully carried out homicide and remain a permanent danger to themselves and to others. Instead of life in prison, life in an asylum.
Zippy Catholic 
What the pro-life movement needs are heavier burdens.
Everyone fears the truth, because the truth is something that we do not control and cannot spin. Aslan is not a tame lion.
Look, I’m really sure of my position which is why I won’t allow any comments to the contrary.
When Zippy nails it he effing nails it.
I actually laughed out loud when I read part of that one post. You can probably guess which one I am referring to and why…
Regarding “exceptional cases,” the pro-life movement reveals its hand by focusing exclusively on strawmen. Consider a few legal points. I know of no individual who actually wants to see the constitution violated to not only allow double jeopardy, but ex post facto prosecution be made possible. The latter would be necessary for the strawman to make any sense at all, and the argument against ex post facto laws generally works on principle irrespective of any particular thing it would outlaw. Ex post facto laws are just extraordinarily destructive of authority and respect for the same and would serve mainly as a form of political reprisal where justice is at best a secondary consideration. Everyone knows that, so why go there unless you need to bait and switch?
The pro-life movement does a whole lot of hand-waving with prudential this, prudential that to escape the fact that simple logic dictates that a law without a punishment for a direct violator (no matter how many violators are involved in one particular act) is toothless and useless. If there were no point system and fine for speeding, and all you got was a lecture and ugly glance, every road would be like the Autobahn.
I read McGrew’s post the other day and had to check the dates to see who was responding to whom.
Another way this is expressed is that–while it’s too soon to even hypothesize whether or not women who abort should suffer punishment (and only if abortion were illegal)–it’s never too soon for them to wish punishment upon the men who impregnate those women.
Nice to see that Lydia at least allows for healthy and spirited debate against the straw men she sets up and knocks down.
Because clearly everybody here is saying that the law must be applied differently for murdering mothers than it would for normal people.
Look at it this way Malcolm, at least she has the self-awareness to know how terrible her arguments are.
Cane,
According to that argument, all men and even quite a few women (mothers of the women considering abortion in particular) are in on the real nature of the baby inside her, but the woman is not. It’s similar to the argument about drunken sex. Even if the woman has a BAC of 0.08 and the man has .16, he is a rapist because clearly a drunk man is still in possession of his faculties even if he is under the same source of delusion as the woman who we are reliably informed is not in possession of hers.
malcolm,
If you read the comments on her thread, it actually gets worse like toward the end where she appears to state that a lot of women actually might not be literally guilty of any sort of real crime against their child. Specific quote follows, since that’s a pretty strong charge:
There is, in fact, a question as to whether every woman who signs a consent form at an abortionist’s office actually “commits filicide.”
Since she likes to cloak her argument in legalism, here’s some legalism. Abortion clinics do not, as a general rule, operate on women who show actionable signs that they are operating under duress. A contract signed under duress that can be reasonably identified as such is not legally enforceable and would give the woman a legal claim against the provider even in the bluest of blue states. The forms of coercion that are used on women are generally not recognized as sufficient grounds for duress in other situations. No court is going to say to a man that sure, he can get out of a contract because his wife threatened to withhold sex and affection from him, or leave him.
For prudential reasons the pro-life movement must not advocate the punishment of women who abort. Therefore it is prudent to shut out from the movement the voices of anyone who disagrees. Therefore it is prudent to not have critical discussion on this issue. Therefore it is prudent to misrepresent alternative views and burn masses of straw.
Just as lie tends to beget more lies to maintain the original deception, here compromise leads to even more compromise.
Well it’s official. Lydia will let Tony say whatever he wants about the Alt-Right and Tradcons, but deletes anything said in response.
And the mainstream right wonders why the “far right” despises them. Funny how despite the differences in philosophy, the Alt-Right and Tradcons tend to strongly dislike them for about the same reasons.
GJ,
One of members of small herd of elephants that has taken up residence in the pro-life movement’s living room is the simple fact that once abortion is outlawed, the subjective content of the woman’s mind is irrelevant when she chooses to disobey the law. Her conscious decision to disobey itself becomes the mens rea that Lydia went at length to make a big deal about.
It’s like drug dealing. A court doesn’t give two rotten dog turds what you think about the morality of drug dealing. Did you intentionally sell that crack? If so, then guess what Johnny Galt? It’s 10-20 in federal lock up for you because you intentionally violated a law that said you can’t sell drugs.
[…] Hat tip to Zippy, who makes a pretty good argument against it himself. […]
Mike,
The best part is nobody even addressed what you said. Nobody is saying that many mainstream American-version conservatives don’t sincerely make an effort to end abortion. The problem, as you correctly pointed out, is that whenever a dispute over the subject comes up they’re quick to support the people who aren’t even willing to help them anyway. That has nothing to do with the first point.
That Tony managed that redirect and got away with it is astonishing.
Mike T:
Right, “mens rea” has been argumentatively transformed into a radically subjectivist tool for begging the question, which makes it impossible to punish anything the question-begger does not want punished. It has changed from a determination of intent to a plea of not guilty by reason of I don’t agree with the requirements of the law — even though I understand the requirements of the law perfectly well, and violated them on purpose.
This is oddly related to the ‘same God’ debate of a few months ago, where merely making reference to God at all was treated as something extraordinarily difficult to do, such that Moslems aren’t even capable of making reference to God. This is what anti-realist commitments do to the capacity to reason. Moslems can’t even successfully refer to God, and women can’t make a deliberate decision to procure an illegal abortion.
Her strongest argument (such as it is) in her own combox is that it is not strictly necessary to punish the murdress – in any way whatsoever, not even with probation or a fine – along with the hit man she hired in order to ‘use the law to teach’; because there have been post-Victorian times and places where women were not punished for abortion and yet strict punishment of the abortionist putatively did the teaching.
There are (at least) two problems with that argument – by far the strongest one in her cluster of arguments.
The first problem is that post-Victorian law obviously failed to do the teaching strongly enough, because that immediate past in fact gave way to this present. If the law had done a sufficient job teaching we would not have ended up where we are. It seems prima facie likely that refusal to treat violent female criminals as violent criminals contributed to the law’s failure to teach. (Lydia of course would immediately jump to the typical right-liberal provincial rationalization of blaming the US Supreme Court, as if Roe vs Wade just dropped from the sky and as if the US were the only legal jurisdiction in the modern world).
A second is that it is simply naked consequentialism: we are to deny justice to innocent victims of deliberate violent murder because of … well, because of no good reason whatsoever.
I am sure I could come up with more criticisms of that particular argument; and it is the best one in her entire arsenal.
It is also worth noting that John Zmirak uses (in the linked/cited article) the same kind of mealy-mouthed euphemism, deliberately making the actual innocent murder victim rhetorically disappear, as the pro abortion side.
“…to end their pregnancies …” indeed.
malcolm,
That Tony managed that redirect and got away with it is astonishing.
Not entirely, when you consider that she opened and closed her post with a personal attack on me 🙂
Zippy,
Right, “mens rea” has been argumentatively transformed into a radically subjectivist tool for begging the question, which makes it impossible to punish anything the question-begger does not want punished. It has changed from a determination of intent to a plea of not guilty by reason of I don’t agree with the requirements of the law — even though I understand the requirements of the law perfectly well, and violated them on purpose.
Another thing, it is possible to have a mens rea with respect to a particular law and be morally guilty of no objective criminal act. It is also possible to be guilty of a heinous moral crime but having violated no statute. The concept of mens rea has been expanded, much like equality, to include a whole load of baggage meant to obfuscate what it actually means. It allows the old weasel words “X, when properly understood” to be deployed to say “when you use my subjective understanding, it makes sense; yours not so much.”
By itself, a mens rea is not big thing per se. Its only significance is whether or not you intended to cooperate with the law or violate the law. Its value only comes in when a judge is looking at a defendant and has to answer to himself whether or not the defendant was trying to break the law or abide by it and show mercy if the latter. In the latter case, mercy is the ordinary preferred course precisely because most accidental violations are done in good faith and the law by nature ought to never jump into punishment straight away over a well-intentioned accident.
And clearly, going through the hoops and hurdles that violating an abortion law would require don’t count as “oopsy.” You don’t bump into street abortionists just like you don’t stumble into drug transactions.
(Just so we don’t go down a rabbit hole on “equality,” what I was referring to was how equality once meant fungibility and now means everything from equal worth, to equal performance, to equal rights, etc. which are all subjective baggage piled onto the straight forward logical notion that two things are equal if one can substitute for the other without any substantial differences, if not outright fungibility)
“The first problem is that post-Victorian law obviously failed to do the teaching strongly enough, because that immediate past in fact gave way to this present.”
As awful as Lydia’s argument is, this is not a valid counter-argument. That we have failed does not (necessarily) mean that our ancestor’s policies were inadequate.
It’s like the “Catholics before VII were just going through the motions” argument.
ArkansasReactionary:
To be clearer, the counterargument is not generically that the past gave way to present atrocities and therefore the past was wrong. The counterargument is that the Victorian/post-Victorian habit of not legally punishing women for abortion – the specific past practice raised as evidence that punishment of women is unnecessary in order for the law to teach – likely in fact contributed to the law’s failure to teach in this instance.
I get that. But the fact that we now have legalized abortion is not proof that the law failed to teach past generations (I of course agree that the past practice was wrong, for the reasons you give in your second counterargument). Our sins are not our ancestors’.
“Proof” is curious word, and not one that I used.
I pointed out a problem with her argument – that if the law just prior to Roe had taught sufficiently we wouldn’t be where we are now. This is rather like pointing out to a Head Start booster that in fact academic performance of the target group objectively measured has gone down.
It isn’t a mathematical theorem.
mens rea at least in legal circles, is a very limited concept, and has nothing to do with whether you thought what you did was subjectively wrong. It simply means one acted knowingly as opposed to accidentally. Thus, pointing a gun at someone knowing they are present and shooting at them with the intent of completing the act is attempted murder (putting aside affirmative defense of self defense, etc.). Shooting a gun in your back yard for target practice with the bullet penetrating your fence and striking your neighbor whose presence was unknown to you is not intentional murder, but likely criminally negligent homicide. I don’t see how one “accidentally” procures an abortion, at least not in the context of a woman who procures an abortion under a regime where it is illegal. Some duress arguments could be raised to mitigate punishment (as crimes of passion are sometimes pitched), but I don’t see how it could absolve her of homicide. And I find it somewhat less than credible that such duress occurs to the tune of approximately 1 million times per year.
In particular, how would you account for the “mens rea” of those who are “out and proud” of procuring their abortions?
In many of her examples, Lydia mixes procedural/evidentiary (p/e) defenses for substantive defenses. P/e defenses make no judgment on the substantive value of the law, but are only there to ensure, to the extent possible, a fair process is used in determining guilt or innocence under the substantive law. Thus, referring to procedural defenses as a basis for implementing substantive defenses is the perfect example of apples and oranges – heck apples and transmissions.
But the fact that we now have legalized abortion is not proof that the law failed to teach past generations
Maybe not. But certainly it is not proof that the law [criminalization of abortion w/o punishment for the woman procuring it] did adequately teach past generations. The assertion is that criminalization of abortion w/o punishment for the woman procuring it is an adequate teacher. That is what we had. That is not where we are. So where is the evidence it works?
Zippy,
What immediately caused the abortion rate to spike was Roe v. Wade. Obviously there were ideological causes of Roe happening in the first place, but that’s an argument that pre-Roe society should have criminalized advocacy of abortion. Saying that Roe demonstrates that there was something wrong with the laws on abortion specifically (as opposed to the lack of laws regarding propagandizing it) is a problematic line of reasoning.
Prosecutorial discretion is no different here than elsewhere. I would contend that in many of the cases that Lydia cited she is absolutely correct that a prosecutor should decide to not proceed because they’re not good cases. Prosecutors have discretion to refuse to bring charges if, say, a 12 year old rape victim is forced to abort by her parents. He or she just does have the authority to refuse to enforce the law against the mother and go after the parents instead because the mother was a child and coerced by evil parents into a crime.
Even if abortion is put on par with murder in the first degree, it is the prerogative of the prosecution to offer a plea deal down to manslaughter if the defendant can make a solid case of genuine coercion and the law allows that charge to be used. In fact, that is something that should be considered in drafting such a law, if for no other reason than to allow the death penalty to be mandated against a woman who gets more than one abortion. If prosecutors could show some mercy in one off cases, I think more people would support the death penalty when recidivism is involved.
Another thing that makes no sense about the standard pro-life position here is that if abortion is outlawed, then coercion to have it will lessen as well because coercion will make the coercer an accessory. That will certainly influence the behavior of a lot of people who would be an accessory if they coerce. Just another reason why punishment is actually necessary. If you want to shield women from coercion, then criminalizing abortion and actually prosecuting it is the only way. Once a few boyfriends and parents get slapped with conspiracy charges, you’ll see a lot of behavior changes.
I have to say, this whole discussion is truly amazing. For years (decades?) it seems the Hegelian Mambo would only step towards the progressive. Now, Trump (TRUMP of all people!?!?), without even thinking about it or even meaning to, suddenly changes the direction. Who would have thought that even 2 months ago the hot topic of conversation would be – not the legality of abortion – but who should be punished! I know it’s not much and likely won’t last long, but for a brief moment the Hegelian Mambo took a sudden twirl and a dip.
Trump is a canid of some sort in sheep’s clothing and his smell sends every wolf in sheep’s clothing into a frenzy the moment he comes near the sheep.
ArkansasReactionary:
You are still missing the point. I am not making a de novo argument; I am addressing a specific argument.
The specific argument is of the form “X works sufficiently.”
The counter argument is “empirically, X in fact did not work sufficiently.”
If someone made the argument (e.g.) that the TLM would be sufficient to prevent things like Vatican II, it is not invalid to point out that the TLM in fact did not prevent Vatican II.
c matt:
This is the synthesis part of the dance. It is now asserted by all respectable people – left, right, center, pro abortion, pro life, and even Trump himself – that no woman should ever be punished in even the mildest manner for procuring an abortion, legally or illegally.
If you really want to grasp “What’s Wrong with the World”, take several steps back and look long and hard at what just happened.
Donald Trump, the Great White Hope of the secular alternative right, just accidentally catalyzed a Hegelian synthesis in which there is now virtual unanimity that the primary person who chooses to murder an unborn child should never face even the slightest punishment or legal sanction. John Zmirak is publicly editorializing using pro-choice rhetoric which erases abortion’s innocent victim in favor of putting the primary perpetrator on a PC victim-throne. Lydia McGrew is arguing for an innovative new legal doctrine of substantive mens rea and that, as a compromise with “practical” “realities,” we should not even consider any sort of actual legal sanction against women who murder their unborn children. Indeed just talking about the possibility of doing so is beyond the pale.
As with the John Wright cap-doffing kerfuffle, this incident could be quite instructive for those who have eyes to see and ears to hear.
The argument made by the modernists is (simplified):
The TLM failed to keep people pious. We know this because after the TLM was abolished, everyone suddenly became unpious. Therefore they were never really pious to begin with.
The obvious counterargument is that it was the abolition of the TLM that made everyone unpious, and that (on the level of your average lay Catholic) things were going pretty well before they canned it.
The modernist argument basically consists in conflating the assertion that “everything is good with the average person” and “everything is good with the ideology of the rulers”. Your argument is basically doing the same thing.
Note, that the argument isn’t “pre-Roe laws were sufficient to prevent Roe”, it’s “pre-Roe laws were sufficient to supress abortion”. Replying by pointing out that pre-Roe laws didn’t prevent Roe is changing the subject.
ArkansasReactionary:
I don’t care. That has nothing to do with the present discussion, and is not a parallel to the argument-counterargument here.
(None of that is to imply that I agree with your understanding of the OT arguments you are dragging into the discussion either though. In fact I don’t, but the whole line of discussion is off topic).
No it isn’t. Your rough paraphrase of a different set of arguments on an unrelated subject is not “basically doing the same thing” at all.
Let me put it more concisely then.
The argument made by the “don’t punish murderesses” people is basically:
Pre-Roe laws didn’t punish the mother, and they effectively suppressed abortion.
You reply with:
Pre-Roe laws failed to stop Roe from happening.
This is a change of subject. If you want laws that prevent future laws from changing, you need censorship. Laws directly against immoral activities exist to suppress those activities. Arguing that they didn’t keep the laws from changing is a red herring.
ArkansasReactionary:
WRONG.
That very general contention is NOT the specific argument to which I am responding in the comment of mine that you think you have been criticizing, but which in fact you have yet to adequately grasp.
I am responding in that comment to the specific contention that the teaching effect of the law was sufficient, prior to Roe, without punishing women.
Here are Lydia McGrew’s actual words:
Fair enough. Apparently I cleaned her argument up too much, in my account of it.
Though I don’t think punishing the mother or not is materially relevant to the law’s resistance to change. If you want to stop the left from pushing X moral evil, you need to directly prohibit advocacy of X.
ArkansasReactionary:
While I agree that advocacy of murder should also be punished, I think that carving out legal exceptions for particular murderers exempting them from punishment does significantly weaken the law’s ‘teaching effect’.
While I agree that advocacy of murder should also be punished
That would make for an interesting foreign policy debate as to how it would apply to men like al-Awlaki.
Mike T:
Well it’s official. Lydia will let Tony say whatever he wants about the Alt-Right and Tradcons, but deletes anything said in response.
On my part, given how two short lines of minor sarcasm triggered complaints in four successive comments by Lydia, I don’t think it’ll be profitable to comment there for now.
[…] is pro abortion if he asserts – for whatever reason or set of reasons – that no woman should face any kind of legal sanction or punishment for deliberately choosing to have her unborn child […]
Around the time that Dalrock and her had a real back and forth in the comment section here, I started noticing she was losing her temper much faster. As I recall, Dalrock was civil. She flies off the handle and posts some absolutely bizarre stuff like she has maintained that it is only her constant vigilance that prevents me from posting truly nasty stuff on W4. You see how she went after “Greg” on her comments. She went after you for that, and I posted a simple statement “Snark is trolling, a minor reference is threadjacking. Got it.” and that got deleted.
I used to think this was me (and not entirely without cause to be fair to her), but at this point I’m increasingly convinced it’s not.
BTW, one of those “truly nasty things” was a snide comment about men “white knighting” in defense of non-ladylike women.
Zippy, sorry for going off topic, but what is your view on laws that prevent double jeopardy?
Alex:
I don’t have a strong view, but my unconsidered impression is that they are a reasonable but imperfect check against prosecutorial abuse.
I do think it should be possible to overcome them with strong enough new evidence though, especially admissions and such by the accused — for example the accused going on television to brag about getting away with murder, etc.
Thanks Zippy!
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