So the following was occasioned by Donald Trump beclowning himself on the abortion issue, but it is not about that particularly. He said, remember, that women who get abortions should, were the practice to become illegal, receive some sort of punishment. He held to that position for about ten minutes, but it was long enough to get this particular issue on the table. I responded to that situation here, and some conversation about my statements followed — on Facebook, Twitter, and here. But more needs to be said about it.
So the question is this. Should women who procure abortions be charged with anything? Should there be any penalty? Ever?
That question in turn divides into two questions. First, are we in the pro-life world proposing any penalties for women now or in the foreseeable future? The answer to that question is no, for reasons I addressed in the first post.
But the second question concerns an ideal biblical republic, and involves the logic of the thing. If abortion is murder, then who is the murderer? And even if the murderer is the abortionist, on what grounds could we possibly say that the mother can never be complicit?
So say that all this postmillennialism stuff is true, and a thousand years from now we have believing magistrates, a faithful people in the main, biblical laws, and all those unfortunate people who were born with a critical spirit have no scope for their blogging talents. Everything in the civil realm is exactly as it ought to be. What would the case be then? Could there be any penalty then? The answer here is of course, but it is an of course that requires very careful exposition. If we argue in favor of governing by slogan, it just shows that we aren’t prepared to govern anything. Biblical law is the absolute truth of God, but that doesn’t mean that it is assembled out of two by fours.
First, we should start with what abortion is. It is the unjust taking of a human life. A human egg fertilized with a human spermatozoon will live forever, and the egg and the sperm that never united will not live forever. All such life should be protected by the laws of the nation.
I know this, but I do not know it because I can see it with my eyes. Nevertheless, I do know this, believing it to be the case. That means — it follows necessarily — that if I deliberately took such a fertilized egg that was in the laboratory and washed it down the sink, I would be guilty of murder, pure and simple. I would be sinning against light. This would be true because abortion is murder. This is true even though I could not tell the difference (at sight) between a fertilized human egg and a fertilized egg of some other mammal.
This soul who will live forever is barely visible to the naked eye. Issues like knowledge, recognition, awareness, and intention clearly enter into how we might assign degrees of culpability in cases like this.
So what is murder? Our laws differentiate (rightly and biblically) between different kinds of murder/manslaughter. One law in Deuteronomy makes a distinction between manslaughter and premeditated murder — “That the slayer might flee thither, which should kill his neighbour unawares, and hated him not in times past; and that fleeing unto one of these cities he might live” (Deut. 4:42; cf. Num. 35:11,15,25; Ex. 21:13). There is premeditated murder (hated him in times past) and there is accidental manslaughter.
“And this is the case of the slayer, which shall flee thither, that he may live: Whoso killeth his neighbour ignorantly, whom he hated not in time past; As when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour, that he die; he shall flee unto one of those cities, and live” (Deut. 19:4-5).
Manslaughter might be negligent manslaughter, where there is some degree of culpability. What do you do when the man with the ax was warned a couple times by the dead man that the ax head was loose? And there are other cases where the person who took the life of the other person was not culpable — it could have happened to anybody. Nevertheless he is still responsible, since he is the one who has to flee to one of the cities of refuge.
What we have here is the matter of intention, and intention is all bound up in how much you know. In our current abortion procedures, the woman has to give her consent, but what is she consenting to? That varies according to knowledge and intention. Some mothers are as guilty as the doctor is because they know, and some women are being lied to.
Suppose we were to imagine a trial in which the prosecution had to prove beyond a reasonable doubt that the woman in question knew that her aborted child was a distinct human life, created in the image of God, could he do it? In some cases he could, but I am convinced that in many cases he could not reach the biblical threshold for conviction. He would have trouble reaching that threshold because this entire topic has been covered over with massive lies for more than a generation. The reason that the pro-abortion forces fight applications of ultrasound technologies to this issue so vigorously is that they know (and they are right in knowing) that there are many women who would not do it if they saw what they were doing. If increased knowledge would affect behavior, then decreased knowledge affects the degree of complicity.
Note that I do not say that it removes complicity. Many women know that they are doing something unnatural and wrong, and they are responsible for what they do know. Moreover there is the additional culpability that comes from not really wanting to know more in order to preserve some degree of deniability. That happens also. But remember the prosecutor. Under biblical law, he has to prove more than the victim is dead and that the accused had something to do with it. He also has to prove a host of other things involving knowledge, awareness, intention, and so on.
Suppose that in our ideal biblical republic, we had a sensational case involving frozen embryos. This is a thought experiment so you need to forget for the moment that there will be no frozen embryos in our ideal biblical republic. But suppose we had them. A man and his wife had the embryos “done up.” Their relationship went south after that and they got divorced. The man married again, and his second wife discovered that wife number one was going to have one of the embryos implanted and was going to carry it to term. In a fit of jealous rage, she breaks into the laboratory and destroys the embryos. Okay, what’s the charge? In my thought experiment republic, the charge would be murder. All the elements are there — intention, knowledge, recognition, etc.
Here is another supposal. If you say that intention, recognition, and knowledge play no role in this, and that a culpably ignorant woman who takes a “no pregnancy pill” deliberately is guilty in the same way and to the same degree as someone who murders her grandmother for her money, you are not yet done. You cannot stop there, pleased with your consistency. What about the women who would never take an abortifacient deliberately because they are ardently pro-life? But suppose they did take some kind of hormonal birth control about which there was some debate, but the woman was only dimly aware of the debate. For her it was simply “birth control.” Now suppose a few years go by, and the debate is then conclusively settled — the substance in question was in fact an abortifacient and the results are acknowledged by everyone. Do you round all these women up and charge them with negligent manslaughter? If you would, remember what a biblical prosecutor would have to do.
My point is not that biblical law is inadequate for these “modern” situations. My point is simply that biblical law does not allow for trial by slogan.
Now when you have a third trimester kid who has everything an American kid ought to have except a ball cap and skateboard, and you have doctors who have done graduate level studies in prenatal growth and development, and they cut such a baby up in order to sell the parts, and they do so precisely because they are human parts, do I have a problem saying that they are guilty of murder simpliciter? No problem whatever. That is abortion in the first degree.
But compare this to a frightened teen-aged girl who is told that this thing that is happening inside her is “just a clump of cells” and she looks it up and sees only a clump of cells, and she vaguely recalls a sermon she heard once where some preacher said “personhood” happens “sometime” later. If she goes ahead and gets the abortion, the loss of life is no less real. It is no less a tragedy, but the degree of culpability for the mother is significantly less. It has not vanished, but it is less.
Note that none of this means that I am admitting of degrees when it comes to the need to defend human life. I am simply talking about who should be charged. I am an abolitionist. Abortion needs to be against the law across the board. Abortion is not okay just because an abortifacient pill is sold to an ignorant woman by a smiling pharmacist. Abortion is never acceptable because the action took place in a well-lit Walgreen’s and not in Gosnell’s shop of horrors.
Such things must be against the law, period. And if against the law, there must be penalties. But against whom, and on what basis?
And one last thing. Where do ideal biblical republics come from? They come from evangelism, reformation, and revival. There would be no way even to discuss such things with profit without a massive cultural consensus. That consensus will in fact happen, but it will be the gospel that does it, and not law. One of the most glorious verses in the Bible speaks to this issue wonderfully. “For the promise, that he should be the heir of the world, was not to Abraham, or to his seed, through the law, but through the righteousness of faith” (Rom. 4:13).
Not through the law, but through the righteousness of faith.