In a recent discussion, "Can We Talk about Abortion?," published by Commonweal Magazine, Dennis O'Brien argues that there is a problem of consistency between the ethical principles articulated by those who hold that abortion is killing an innocent human being and the legal penalties that they wish imposed, should abortion ever be criminalized. He writes:
The moral rhetoric used by many bishops to condemn abortion does not seem to fit the criminal penalties that they apparently accept. Further, I find it hard to believe that the bishops would support severe criminal laws commensurate with the moral rhetoric of abortion as an 'abominable crime.' When there is a serious disconnect between the gravity of moral condemnation and legal penalty, one or the other should give. Either the rhetoric is too severe or the law is too lenient.
Putting aside the political reality that lessening a criminal penalty may be necessary for getting the legislation to pass, it should be noted that a penalty's severity is not determined solely by the wrongness of the criminal act, but also by the likely consequences of that wrong for the community. Both the President of the United States and any other person have equal moral and legal rights not to be intentionally killed, and yet it makes sense to impose more stringent penalties on political assassins than on other killers. The difference in penalty is justified by the President's leadership in society. Killing a political leader can threaten the democratic order, destabilize the geopolitical balance, and perhaps even prompt a world war. Killing the average citizen does none of those things.
Similarly, in the typical case of murder, someone's life plans are thwarted, someone's duties can no longer be discharged, and other people may fear for their lives. Though these factors might shape the penalty imposed on the murderer, they become irrelevant from the perspective of an unborn life that ends in abortion. So, one can hold that abortion and the murder of an adult both intentionally kill an innocent human being without being forced to also hold that abortion and the murder of an adult should be punished in exactly the same way by law.
O'Brien proposes that the law should tolerate abortion: "Grave as the moral fault may be, it [abortion] is not something that can fall under legal restraint." He is right, of course, that not all grave moral faults should also be illegal. It is seriously wrong to insult one's mother just for fun. It is seriously wrong to willfully and without excuse neglect one's spiritual life. It is seriously wrong to waste all of one's time and excess income merely on self-indulgent whims. But none of these moral faults should be matters of criminal law.
By contrast, many other moral faults, such as assault, theft, rape, and murder, should be against the law. One way to draw the line between these two kinds of cases is to consider whether the wrong done is seriously injurious to the bodily or material well-being of another person. Private vices, like wasting all one's time and money on idle pleasures, do not intentionally harm others. Insulting one's mother does not seriously harm her in terms of her bodily or material well-being. By contrast, assault, theft, rape, and murder do impose serious bodily and material harms on innocent persons.
If morality and law are related in roughly this way, then abortion--understood here as the intentional killing of a human being prior to birth -- is not merely a moral fault that deserves legal tolerance. Rather, fetal killing imposes a serious bodily harm on an innocent human being; the law, in its role of protecting the innocent from serious harms imposed by others without due process of law, should prohibit abortion just as it does other serious harms to the well-being of persons, such as assault, rape, kidnapping, and theft.
O'Brien does not deny the harm of abortion, but he does seek to contextualize it in the intimacy of gestation. The reality of pregnancy -- the unique, intimate relationship of the human being in utero and the pregnant woman -- changes the ethics of feticide: "The pregnant woman's womb is not just a geographic location for an independent entity that would be the same if it were located someplace else." To deny this reality is to reduce the pregnant woman to a "container."
The intimacy argument, as articulated by O'Brien, begs an important question: Why should independent moral status require independent physical status? We don't think that one conjoined twin may licitly or legally authorize a third party to kill her conjoined sister in order to terminate their intimate relationship. Indeed, the intimate relationship that always exists in pregnancy is a powerful argument against abortion. Every human fetus is a mammal, and every mammal has a mother. Sound ethical reasoning and just laws hold that human mothers and fathers have serious duties to care for and, above all, not harm their own dependent progeny. So, the intimate relationship that exists in every pregnancy gives rise to the duty of the mother not to harm her own child prior to or after birth, including by prematurely ending the child's life. Precisely because an expectant woman is a mother rather than a mere container, she has duties to her dependent unborn child.
Finally, turning to the rare but real case of rape, O'Brien writes, "A woman may have no moral or legal obligation to carry a child conceived by rape -- but she may decide to do so. She has no obligation in justice to continue the pregnancy, but she may act from benevolence. Depending on circumstances, benevolence moves into the realm of moral heroism -- in Christian terms, into saintliness. As Christians we are all called to saintliness, but saintliness is not a direct moral demand and it certainly is not enforceable by law."
O'Brien is correct that a woman who continues her pregnancy is a hero. In so doing, she radically contradicts the act of her attacker. He imposed himself on her; she gives of herself for her child. He acted selfishly; she acts benevolently. He diminished her life for his pleasure; she nurtures a life despite the pain. Such a woman is acting in a saintly manner. Does it now follow that since such a woman is heroic, it is morally and legally permissible to have an abortion? No, it does not.
Unfortunately, evil people can force other, more vulnerable people into situations where the morally permissible but not heroic option is gone, and the only available choice is between moral heroism and moral evil (or illegal activity). A torturer may force a prisoner to choose between heroically keeping silent and telling secrets it would be immoral to reveal. A terrorist can force a hostage to choose between getting killed and helping the terrorist to kill. The rapist who impregnates a woman forces her to choose between enduring an unplanned pregnancy and inflicting life-ending harm on her own innocent child. It takes heroism to choose the former, but it is still wrong to choose the latter.