Criminalizing Abortion

I have recently been translating an old article by the philosopher Robert Spaemann on the abortion debate that took place in Germany in 1974, “Am Ende der Debatte um #218 StGB.” The debate followed a decision by West Germany’s high court to strike down a law legalizing abortion in the first 12 weeks of pregnancy. Part of the article addresses the issue of whether abortion should be made a criminal offense. As I read it, I thought to myself that this was an interesting issue to ponder, but it was, of course, not at all relevant to the state of the question in contemporary American society.

But I am happy to have been proven wrong yet again. For the legislature of Arkansas has just managed to override the governor’s veto of the Arkansas Human Heartbeat Protection Act, meaning that when the law takes effect 90 days after the legislative session adjourns (May 17th or so), many abortions after the 12th week of pregnancy will be illegal in Arkansas. Specifically, the law calls for any woman who is at least 12 weeks pregnant to undergo an ultrasound; if a fetal heartbeat is detected, the abortion is prohibited–exceptions being given in cases of rape, incest, danger to the mother’s life, or fetal anomalies expected to prove fatal.

What is most interesting about the Arkansas law (at least in light of the sections from Spaemann’s article which I will provide below) is that it does not criminalize abortion for the women seeking it–even if they undergo an illegal abortion–but it does criminalize abortion for the doctors who perform the illegal abortions. Such “doctors” would face the revocation of their medical licenses by the state medical board. (Fox News also reports here that “doctors” performing illegal abortions could also face fines and jail time, but I have been unable to confirm the accuracy of that report, since the text of the bill that I read made no mention of such penalties).

In the two paragraphs I translate below, Spaemann addresses this issue of whether abortion ought to carry with it criminal penalties. Specifically, he responds to the common argument, still advanced today, that “legal sanctions <against abortion> would be ineffective, and the number of undetected cases enormously high.” Because of the unfamiliar nature of some of Spaemann’s references, I have inserted some brief explanations in angle brackets into the text.

Spaemann talking

Robert Spaemann, “Am Ende der Debatte um #218 StGB,” in Grenzen: zur ethischen Dimension des Handelns, 356. Stuttgart: Klett-Cotta, 2001.

The ineffectiveness of legal protection is not only not proven, but in fact foreign experiences show with a limited assurance the probability of the contrary. In England the rate of legal abortion rose from 7000 in the year 1964, before its legal approval, to 156,000 in the year 1972, without having lessened the number of illegal abortions in an approximately comparable magnitude. The obligatory “consultations” must, when faced with this number, degenerate into a farce. <Many countries, including Germany, try to “protect” the unborn child by requiring that the mother undergo a pre-abortion counseling or consultation concerning the gravity of the decision.> With legal abortion, women with multiple children are in the minority. On the other hand it appears to be bad for a teenager who is sixteen, seventeen, or eighteen. Loathing and moral dilemmas will grow in the clinics, if, with this change, the cancer sufferer cannot receive timely treatment. In the Eastern bloc these conditions after the legalization of abortion led to new restrictive measures. Criminal laws would be effective, were they to be used, as shown in Romania, where the exorbitant abortion numbers after the return of “criminalization” markedly decreased. That does not fundamentally constitute a return flight into illegality, as it is obvious that after the return of abortion laws the number of births tripled in a year and a half.

<According to Wikipedia, that font of unverified knowledge, prior to abortion being outlawed in Romania in around 1967, 80% of pregnancies ended in abortion. That’s right, 80%. A “massive baby boom” then followed Decree 770 which outlawed abortion. Since the fall of the Communist regime there, abortion was again made legal. And, again, the birthrate has plummeted to well below the rate for societal replacement.>

Finally, the proponents of abortion on demand overlook one assuredly valid insight from the sociology of law, namely the norm-building power of criminal sanctions. This is especially valid for secular societies, in which the power of religion to build moral norms has waned. In such secular societies, the criminal law applies to a great extent as a limit, which fixes the “ethical minimum.” Not to leave the criminal law solely in the hands of the woman is a buttress, and often the only one, against the pressure around the progenitors urging them toward abortion. This function alone would already be enough to render the abolition of the “protection paragraphs” irresponsible. <I believe Spaemann is here referring to the human rights guarantees in the German constitution.> Naturally, the protective effect of the criminal law can be decreased by irresponsible public propaganda. But if human life is legally protected from the beginning, why should man then capitulate before the propaganda campaign instead of just ignoring it?”


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