how much jail time? returning women to the abortion debate

ARGUMENTATION AND ADVOCACY 50 (Fall 2013): 89-103

HOW MUCH JAIL TIME? RETURNING WOMEN TO THE ABORTION DEBATE

Joseph C. Packer

The current Communication studies literation on the abortion debate shows the pro-life side holding a ll o f the cards. Their use o f deontological rather than teleological language and their ability to assert their ideograph < life> over <choice> , by m aking women invisible, act to stack the deck in their favor. “I f abortion is criminalized, w hat should the penalty be fo r a wom an who has an illegal abortion?” This simple question has the capacity to overturn these advantages, causing pro-lifers to use teleological language an d m aking visible the women who choose abortion.K ey Words: Abortion; Ideograph; Roe vs. Wade; Invisibility; Political Rhetoric; Deontology; Teleology; Feminism

“If abortion is criminalized, what should be the penalty for a woman who has an illegal abortion?” This deceptively simple question leaves many pro-life protestors, politicians, and organizers struggling for an answer. The Manichean pro-life rhetoric has difficulty accounting for the complex figure of the mother who aborts; typically she is absent entirely from pro-life discourse. The question of “how much jail time?” (HMJT) moves these women to center stage in a way that undermines the simple narrative that abortion is murder, which has come to define the pro-life movement. After a long period of stagnant rhetoric from both sides of the debate, HMJT offers the pro-choice movement an opportunity to radically reframe the question of legal restrictions on abortion.

A recurrent question in the abortion debate, HMJT made a major splash in public discourse in 2007 when At Center Network posted a short documentary entitled Libertyville Abortion Demonstration on YouTube (AtCenterNetwork). The documentary takes place in Libertyville, Illinois, where red shirted pro-life protestors hold signs depicting aborted fetuses. An unseen cameraperson asks the demonstrators variations of the question: “If the government makes abortion illegal, how should it punish women who have abortions?” The responses differ, but almost all the protestors shown on the documentary admit not having considered the issue despite many years of participation in the pro-life movement. Libertyville Abortion Demonstration attracted major attention, gamering 391,651 views as of November 3, 2012. The question of HMJT moved from the web to print, when Newsweek published a piece by Anna Quindlen (2007) praising the documentary saying, “The great thing about video is that you can see the mental wheels turning as these people realize that they somehow have overlooked something central while they were slinging certainties” (p. 68). The same month, the National Review, a conservative journal, organized an online forum comprised of leading pro-life thinkers to respond to Quindlen’s article (One Untrue Thing, 2007). Three months later, Chris Matthews forcefully put the HMJT question to guest David O’Steen of the National Right To Life Committee (Matthews, 2007). The National Institute for Reproductive Health, a pro-choice organization, turned HMJT into a successful political ad campaign during the 2008 campaign. They credit the message with helping to defeat anti-choice ballot

Joseph C. Packer, Department o f Communication and Dramatic Arts, Central Michigan University. A n earlier version o f this paper was presented a t the 2009 National Communication Association Conference. The author expresses gratitude to Ronald Zboray, Mary Zboray, Gordon Mitchell, Brent Malin, Pauljohnson, andJeffKurr, for looking over drafts o f the paper and the editors and anonymous reviewers at Argumentation and Advocacy for their invaluable assistance. Correspondence concerning this article should be addressed to Joseph C. Packer 319 Moore Hall, Department o f Communication and Dramatic Arts, Central Michigan University, Mount Pleasant, Michigan, 48859. Email: [email protected], [email protected]

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initiatives in South Dakota and Colorado and defeating anti-choice US senate candidate Gordon Smith in Oregon (National Institute for Reproductive Health, n.d.).

HMJT made such an impact in a culture largely desensitized to the ongoing abortion debate because it breaks down the traditionally stale and scripted abortion dialogue and undermines many of the pro-life movement’s common rhetorical strategies. Although HMJT has reemerged periodically throughout the history of the abortion debate, this study examines At Center Network’s Libertyville documentary and the immediate aftermath as a case study. The paper begins with an examination of the current literature on the abortion debate and focuses on the ways the pro-life movement has crafted a favorable rhetorical environment through their use of ethical language and their elevation of <life> over <choice>. The following two sections examine how HMJT disrupts these complementary pro-life rhetorical strategies. The first of these sections examines the responses of the protestors in Libertyville Abortion Demonstration. This section shows how HMJT evens the playing field between the ideographs <choice> and <life> by centering the locus of discussion on women. The following section examines responses to HMJT by 17 leading pro-life advocates found in the National Review online symposium. This section shows how HMJT causes these pro-life thinkers to shift from simple and easy to grasp deontological language to much more complicated teleological language.

This paper offers two important contributions to the field of Argumentation. First, it adds to the understanding of the abortion debate, one of America’s most bitter and protracted controversies of the modem era. It also identifies a strategy that has the potential to undermine what the field recognizes as the two great rhetorical strengths of the pro-life movement: deontological language and techniques to privilege <life> over <choice>. Second, the paper contributes to the study of controversy more generally. The case study suggests that ideographs in extended disputes risk becoming overextended and calcified into extreme and inelastic positions. These ideographs, robbed of their flexibility and reason- ability, may lack the ability to remain persuasive in the absence of equally rigid opposition. When one side chooses not to push their own ideograph, but to take serious the opposition’s, it can shine light on these characteristics and act as a reduction ad absurdum.

T he A bortion D ebate

This review of the literature on abortion rhetoric begins with an examination of the ideograph, because of its central place in the abortion debate (Condit, 1990; Railsback, 1984). Ideographs are common words that stand in for a general social value, put into service of particular political ends (McGee, 1980). Beginning in the 1960s, opposing abortion advocacy groups rallied around particular ideographs, <choice> and <life> (Condit, 1990). In relatively short order the ideographs became to define the opposing sides so strongly that the movements became synonymous with their chosen ideographs: pro-choice and pro-life. The long-standing nature of the debate caused both sides to employ a strategy of “overweighing,” where they argue the need for the “complete sacrifice of the opposing values” (Condit, 1990, p. 159).

The move to completely devalue the opposing side’s ideograph occasionally resulted in political shifts as pro-life and pro-choice individuals moved to square the panoply of their political views with their “overweighed” ideograph. The Catholic Bishops of America employed the term <life> in its anti-abortion debate in a way that opened them to charges of hypocrisy for their support of the death penalty (Condit, 1999, pp. 313-314). Critics

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pointed out that the call for <life> regarding abortion conflicted with the group’s endorsement of taking the lives of criminals. After elevating <life> as a key ideograph that outweighed all other values, the Catholic Bishops of America felt pressure to alter its other policies in keeping with <life>. Similarly, groups that opposed public funding for abortion used the ideograph <choice> in order to win legislative victory in Congress. These groups argued that using taxpayer money to fund something that a citizen thought was immoral removed her or his choice (Hayden, 2009, p. 120; Railsback, 1984, p. 417). Supporters of public abortion funding “faced their own [<choice>] ideology as a limiting condition” and public support for restrictions on public funds for abortion coalesced around <choice> rather than <life> (Railsback, 1984, p. 417). The overweighed ideographs held such rhetorical force that both sides made concessions to fit their ideograph, rather than refining their ideographs to fit their political beliefs: a case of the tail wagging the dog.

The rhetorical framing of the abortion debate undoubtedly plays an important role in creating the conditions that allow for the slow, but very real, shift towards pro-life policies. As Sara Hayden (2009) writes, “Whereas the fixing of ideographs has served the cause of < life> well, it has had detrimental effects on the campaign for <choice>” (p. 112). Even though no titanic political movement has altered the landscape of the abortion debate since Roe vs. Wade, the 1973 Court decision that made abortion a constitutional right, the direction of the debate has shifted in favor of pro-life advocates. Prior to At Center Network’s 2007 documentary, many states had passed intrusive health regulations that only applied to abortion providers and seemed designed only to increase costs of these facilities. For example, South Carolina prohibited grass around abortion providers. Many of these regulations also reduced patient privacy by opening up patients’ medical histories to the health department (Jones, 2005). Rather than overturning Roe vs. Wade, the Supreme Court gradually chipped away at the precedent by allowing states to demand parental consent, require waiting periods, and enact informed consent laws that reduced access to clinics (Dominus, 2005). Some states had virtually no abortion facilities because of these types of obstructions (Goodman, 2006). The ground staked out by the two sides favors the pro-life groups because they articulate their position in clearer ethical language and because they have perfected techniques that undermine the ideograph < choice >.

The clarity of the pro-life ethical position comes from the moral language its defenders use to set the terms of the debate. Pro-life groups typically articulate their position as deontological, rather than teleological (Lake, 1986; Palczewski, 1992, p. 270). Deontological ethics demand that one evaluate abortion’s morality independently from an examination of the circumstances surrounding any particular abortion. Pro-life advocates argue that abortion fails the deontological test because it represents an evil behavior. They typically describe a fetus as a person from the moment of conception, which makes abortion the killing of an innocent <life>. Most of the major American pro-life groups, Operation Rescue, the Pro-life Action League, and American Life League, as well as important pro-life figures like Pope John Paul II and Ronald Reagan, contextualize this loss of life in terms of “murder” (“Communique - Mar. 28, 2003,” 2003; Palczewski, 1992, p. 270; Paul II, 1995; Scheidler, 2003; Veritas, 2009). The ever-present visual rhetoric of dead fetuses helps to solidify the pro-life position such that the battle for the ideograph <life> is a fight to end murder (Hayden, 2009). For most pro-lifers, abortion (i.e., murder) demands a deontological rejection, without a consideration of whether an abortion increases overall welfare for the mother or anyone else. The pro-life position lends itself to clear articulation: Because a fetus is a person beginning at conception, abortion is murder, and all murder should be outlawed.

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Pro-choice advocates typically defend abortion on the basis of the increased welfare it brings to women and society, a teleological, rather than deontological defense (Lake, 1986; Palczewski, 1992). They take this argumentative tact in part because few, if any, people view abortion as “good” in and of itself. Most pro-choice advocates claim to want to reduce abortions by removing the circumstances that make them occur. “Safe, legal, and rare” has long been a rallying call of the pro-choice movement. The inclusion of “rare” serves as a tacit concession to the pro-life view that abortion is undesirable, even if pro-choicers believe it may be the best option in some cases. Teleological defenses cannot provide a categorical justification of abortion in all instances because they draw upon the circumstances of particular abortions to justify them and abortions all have unique circumstances.

The deontological pro-life position lends itself to more simple rhetorical deployment. American society uses deontological language to describe most paradigmatic cases of evil. This allows the pro-life movement to easily make analogies between abortion and other social evils. William F. Buckley, Ronald Reagan, Orrin Hatch, Antonin Scalia, Rick Santo- rum, and many others have analogized fetuses to disenfranchised and enslaved blacks (Berkenwald, 2011; Lake, 1986; Threedy, 1994; Zarefsky, 1991). Pro-life groups frequently compare abortion to the Holocaust (Condit, 1990; Gregg, 1994). The legal case for ending abortion appeals to the equal protection clause, the constitutional guarantee that provided the legal basis for the civil rights movement (Palczewski, 1992; Threedy, 1994). At stake in these analogies is the definition of “human” because if fetuses are humans, then nothing could ethically justify abortion. This ethical definitional argument allows pro-lifers to sweep aside consequentialist arguments against prohibiting abortion (Lake, 1986).

The pro-choice movement’s teleological language operates under the rubric of contingency, rather than absolutes, making it less persuasive. Pro-choice advocates rely on complex ideas like the horror of unsafe illegal abortions (Condit, 1990). While a serious concern, the question of unsafe illegal abortions raises questions such as, “Will such abortions occur and if so how many,” “does the blame lie with the women who choose this option,” and “are all abortions inherently unsafe for the women who have them?” Teleological language in defense of < choice > also lends itself less easily to analogies, because it focuses on achieving specific outcomes, rather than broad ethical principles that connect the right of abortion to other rights.

Because the teleological nature of the pro-choice position deemphasizes strict ethical rules in favor of looking to outcomes, pro-choicers often struggle to draw clear lines for when an abortion is acceptable. Pro-life advocates align moral standing with the creation of a new human (at conception), whereas pro-choice groups often have trouble expressing a bright line for when a fetus gains moral standing, what they often refer to as personhood. Roe vs. Wade defines the contested rights of mother and fetus in terms of the three trimesters of a pregnancy, with the woman slowly losing the absolute right to choose abortion over time. The viability of the fetus provides the justification for the shifting standard, but fetal viability itself is a shifting standard with new technology speeding the potential for a fetus to survive on its own. Other pro-choice advocates use fetal consciousness as the standard for personhood (Boonin, 2003; DeGrazia, 2003). Consciousness provides a potentially stable standard in theory, but represents an elusive concept in practice. It is difficult to assess exactly when a fetus becomes conscious, and defenders of the consciousness standards typically are forced to offer a range of time rather than an exact point at which a fetus becomes conscious. The flexible nature of these standards has even led some radical pro-choice advocates to call for

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withholding of moral status even after a fetus is born and thus allowing “after birth abortion” (Giubilini & Minerva, 2011; Singer, 2011, pp. 155-190).

The indeterminate nature of pro-choice standards for personhood does not make them wrong, but it does make them difficult to defend. As pro-life advocate Gregg C u n n i n g h a m (2009) writes:

There is, of course, a consensus in the scientific community that human life begins at the instant a human egg is fertilized by a human sperm . . . the humanity of the unborn child is a matter of objective science. Personhood, however, is a legal status which society can confer upon or withhold from a class of human beings as a function of the subjective values which inform our “politics.”

While after birth abortions represent an interesting thought experiment, the idea also serves as a rhetorical goldmine for the pro-life movement eager to point to a slippery slope from legalized abortion to a culture that sanctions murder of any citizen. Slippery slope arguments have been a mainstay of the pro-life movement, perhaps best exemplified by Ponnuru’s (2006) book The Party of Death, published a year before the public presence of At Center Network’s documentary. The pro-life standard of personhood from conception gains persuasive power from its simplicity, stability, and presumed objectivity.

In addition to the use of clear ethical language, the pro-life movements gain a rhetorical advantage from the techniques they have perfected to elevate <life> over <choice>. The fact that society typically values <life> over <choice> aids them in this move. The pro-life slogan “It’s a child, not a choice” encapsulates the problem for pro-choice advocates. The analogy is simple and draws on commonsense views of ethics such that it works as an enthymeme. Society recognizes almost no situation that gives one person the right to kill another person. The few exceptions merit significant justification and involve forms of criminality for which a fetus does not have the capacity.

The pro-life movement also works to subject <choice> to <life> by making the person who chooses (i.e., women) invisible. Images of fetuses, omnipresent at any pro-life rally, position the fetus as a “homunculus” independent from its mother, who remains absent from the picture (Petchesky, 1987). These images operate within a broader narrative that separates mother and fetus, brought about by technological changes that make the fetus increasingly visible at the expense of the visibility of the mother. As Duden (1993) writes, these new technologies “skin” women causing a “dissolution of the historical frontier between inside and outside” (p. 78). This dissolution depicts the fetus as an independent agent, moving its right to <life> outside of the context of its mother’s womb and thus her right to <choice>. The perspective of the fetus as separate from its mother makes abortion an act of aggression: the fetus exists peacefully until attacked by the abortion. This narrative aptly counters the idea of the unwanted fetus as an intruder in its mother’s womb, embodied in the slogan “my body my choice.” Independent agents do not have the <choice> to kill one another and thus the independent fetus should have its <life> preserved.

These rhetorical advantages of the pro-life movement have put opponents on the defensive. In order to regain momentum, pro-choice individuals propose radical strategies, from rearticulating <choice> in terms of equality, abandoning the ideograph <choice>, and even stealing the opposition’s ideograph and labeling abortion pro-life (Abortion Rights are Pro-Life, (n.d.); Hayden, 2009; Marcotte, 2013). Instead of enacting a shift in ideographs, HMJT acts to investigate the ideograph <life> as anti-abortion groups currently deploy it. This takes <life> seriously, rather than trying to overwhelm or hijack the term. The next

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section examines HMJT as a rhetorical strategy that uses this technique to reframe the abortion debate in a way that favors pro-choice policies.

R eturning W omen to the D ebate

If fetuses are truly independent human lives in an uncomplicated and unqualified manner, then the answer to HMJT would be obvious: The mother should face the penalty for homicide in the state the abortion occurred. Protestors appear to make this point clear when they use the word “murder” to describe abortion. Laws already exist to deal with murder, so if a fetus is a person and abortion is murder, then a reasonable solution would be to apply the murder laws to people who kill a fetus. The reality of pro-life views, however, is much more complicated.

When asked what the legal punishment for women who have abortions should be, only one protestor in At Center Network’s (2007) documentary said that murder laws should apply to women that have abortions:

Questioner: What should the punishment [for abortion] be?

Protestor: That’s hard to say

Q: What do you think?

P: Depends on the state of mind the woman is in, really.

Q O k

P: Um, it’s illegal she should be punished.

Q: Should she be sent to jail?

P: Ultimately yes, but I think you got to take a lot of things into consideration too.

Q: What do you think the range of jail time should be?

P: Pm not a lawyer. . . I couldn’t . . . it depends, if she knew she was killing her child, umm, the same punishment that anyone would get for killing anyone else.

Even though the protestor ultimately claims that women should face the penalty for murder, this comes with conditions. One needs to take “a lot of things into consideration.” It is also important that the woman in question recognizes herself as a murderer: “She knew she was killing her child.” It is difficult to even understand what the statement, “She knew she was killing her child” means. Does this require that the woman share the pro-life view that a fetus is a human child or just an understanding that abortion eliminates a fetus? These equivocations mark a sharp departure from the clarity of the central organizing pro-life principle that abortion is murder, a legal term with an already determined punishment. One leaves the video with the impression that the protestor reaches a reluctant conclusion that the logic of her pro-life beliefs requires the state to treat women who have abortions as murderers. Even with her equivocations, this protestor comes the closest to defending the idea that the state should treat women who have abortions as murderers.

More commonly, the protestors at Libertyville appear genuinely surprised at the question and are at a loss for how to answer it. The first person interviewed, a pro-life protestor of two years, responds, “I really haven’t speculated much about it.” Another said, “I don’t know what should really happen to them.” A woman who protested abortion for around five years replies:

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Protestor: You know I never even really thought about that.

Questioner: And in five years you have never thought about what would happen to the women?

Protestor: I have thought about I have seen the pictures of what happened to the babies and I see the pictures that we show and I see what happens to them. (AtCenterNetwork, 2007)

These responses reveal the effectiveness of the pro-life movement’s rhetorical efforts to make women invisible. For most of the protestors interviewed, abortion is a crime committed by an abortion doctor on a fetus, with no mention of the women who choose to abort; women are absent from the event. As the last protestor’s quote demonstrates, the pictures of the fetuses push women out of the frame of analysis. The protestors concern themselves with the fetuses without thinking about how their advocacy of criminalizing abortion would or should affect women. The pro-life movement’s success comes in large part by rendering the chooser invisible. Without an agent to choose, <life> clearly triumphs over <choice>.

HMJT forces absent women back into the frame. The question of punishment serves as a reminder that an agent exists to punish. The fetus moves from disembodied homunculus to firmly inside a woman. The idea of the state treating women as criminals appears to elicit genuine feelings of conflict among the protestors. The ultimate answer to HMJT is irrelevant to the rhetorical success of the question, however. Regardless of how many years of jail time, including zero, that pro-lifers decide women who have abortions should serve, merely discussing women who have abortions changes the nature of the discourse. By returning focus to the chooser, it draws attention to the fact that pro-life policies impose costs on women. In this way, HMJT answers Petchesky’s (1987) call for new rhetorics that “recontextualize the fetus . . . place it back into the uterus, and the uterus back into the woman’s body, and her body back into its social space” (p. 287).

Here it is worth addressing the possibility that the above pro-life responses to HMJT do not reflect how typical pro-life protestors would handle the question. It may very well be that At Center Network only showed responses that fit a pro-choice narrative. Evidence exists, however, that this is not the case. The experiment has been repeated by a blogger at the Daily Kos with similar results (cubswin39, 2008). HMJT proves a difficult question even when pro-life protestors are not put on the spot, as Giere (2007) wrote:

[At Action Center] selected people for his video who would be unlikely to have a well-reasoned answer to his question. This led his sympathizers who saw the video to characterize the people interviewed as stupid and ignorant. As I watched the video, I struggled with how I would answer the question. At first I felt kind of stupid because I had no answer. I’m an aerospace engineer (rocket scientist) and I do like to think through all the ramifications of decisions.1

Indeed, HMJT also poses difficulties for major pro-fife figures, like George H. W. Bush (1988), who was asked the same question during his presidency and responded, “I haven’t sorted out the penalties.” Tim Russert asked pro-life politician Jim DeMint HMJT seven times before he received the noncommittal answer, “You know, I can’t come up with all the laws as we’re sitting right here, but the question is are we going to protect human fife with our laws?” (Martin, 2004). The discomfort these seasoned politicians have articulating specific legislative punishments for women who abort mirrors those found in the At Center Network documentary.

1 It is worth noting that despite not having a ready answer to the question, Giere goes on to explain why he does not think this undermines the pro-life cause.

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The unwillingness to engage the question of punishment, a central component for legislation that proposes criminalizing a practice as common as abortion, cries out for explanation. The rhetorical invisibility of women from the abortion debate provides the best account for this conspicuous absence. HMJT brings the question of punishment and thus the guilty to the forefront, undermining pro-life rhetoric’s move to make women invisible. This process of making women visible demonstrates the relative lack of thought pro-life advocates have given to the consequences of making abortion illegal. This exposes a weakness in the pro-life rhetoric as one that focuses on the ideograph <life> to the extent that it blinds advocates to the person making the <choice>.

Pro-life advocates assume that the moral weight of abortion means one should, “ignore the practical consequences of adherence to the proposed definition [of fetus as human, because] when a principle is at stake, issues of expediency are beyond the pale” (Lake, 1986, p. 492). If this strategy worked, this would negate the question of HMJT, effectively returning women who abort to their invisible status. While this strategy may work in other contexts, the question of punishment for women who abort, however, is not so easily dismissed, in part, because it speaks to the definitional issue of “What is a fetus?” Treating abortion as a misdemeanor, felony, finable offense, etc. does not just impact the women who are penalized, but speaks to the <life> of the fetus. A small or nonexistent penalty could devalue the fetus by suggesting its death is of little concern. Too great a penalty risks alienating pro-lifers and the general American public uneager to lock up women. The next section examines how HMJT forces the question of punishment into the public arena and how some prominent pro-life individuals respond.

T eleological Language

Quindlen (2007) ends her article praising Libertyville Abortion Demonstration by arguing that “there are only two logical choices: hold women accountable for a criminal act by sending them to prison, or refuse to criminalize the act in the first place.” The National Review commissioned a symposium of 17 important pro-life figures to write on the question of HMJT (“One Untrue Thing,” 2007). Many choose to respond directly to Quindlen’s claim that only two options are logical. Joseph Dellapenna, law professor at Villanova, accuses Quindlen of “evad[ing] a number of hard facts that demonstrate that the matter is not so simple as her reasoning suggests” (“One Untrue Thing,” 2007). O. Carter Snead, associate professor of law at Notre Dame, writes, “There is no ‘logical necessity’ that ties the hands of lawmakers” (“One Untrue Thing,” 2007) and Anne Hendershott, sociology professor at the University of San Diego, calls it a false choice.

Viewing Quindlen’s statement in isolation, the pro-life responders have a strong case. As legal counsel to the Judicial Confirmation Network, Long points out, “Society’s judgment about the relative lack of culpability of the mother of an aborted child in no way undermines the humanity of that child. The law assigns differing degrees of culpability in various situations-including killing other people-all the time” (“One Untrue Thing,” 2007). Abortion, viewed as the taking of a life, has its own set of unique circumstances (e.g., the dependence of the fetus on the mother, the assistance of a doctor, etc.) that one could argue merit abortion receiving a unique punishment or lack thereof. If current laws regarding self-defense and the various “degrees” of murder do not violate the dictates of “logic,” then having no punishment for abortion would appear not to as well.

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Strictly speaking, Quindlen does not raise a fatal logical flaw in the pro-life argument, but she does raise a serious rhetorical concern. Whether or not the symposium respondents use the language of murder, slavery, and genocide to describe abortion, these discourses remain a dominant narrative in the pro-life movement. Hendershott correctly says that “Pro-lifers are not demanding that abortion be legislatively designated as murder” (“One Untrue Thing,” 2007), but they do rhetorically demand it be designated as murder. The language of murder, slavery, and genocide may not logically necessitate legal punishment for women who have abortions, but it certainly has that connotation. Overcoming the common connection between murder and genocide and harsh legal punishment requires significant explanation on the part of pro-life defenders. If the pro-life defenders refuse the discourse of murder and genocide it sets the stage for intra-movement conflict and raises the question: Why, if a fetus is a person, is abortion not legislatively designated as murder?

The participants in the symposium never explicitly reject the language of murder. Instead, they focus on offering justifications as to why abortion does not merit punishments for women. The end result, however, complicates the simplistic logic of “abortion is murder” that animates many of the most active and ardent pro-lifers, what Randall Terry, founder of Operation Rescue, calls the pro-life movement’s “most effective rhetoric” (Veritas, 2009). The ideograph <life> made visual in the form of pictures of aborted fetuses serves to define the act of abortion as murder. Pro-life explanations of why the state should not treat abortion as murder must confront the ideograph that lies at the foundation of the movement. These explanations take the form of the very kind of teleological language that many in the pro-life movement criticize pro-choice activists for using. Allowing context to determine the correct punishment for abortion opens the door to allowing context to determine whether abortion is acceptable. This section examines how the major themes that emerge in the pro-life symposium take the form of teleological argument.

A large number of the symposium members make the argument that prudence demands not treating abortion as murder. Matthew J. Franck, political science professor at Radford University, rejects punishments for women who abort saying, “The proper approach (after Roe) is to ask, ‘what policy would reduce the number of abortions as much as possible now’,” (“One Untrue Thing,” 2007) and claims, “the law must be prudent, not the product of sophomore logic.” Snead, Ramesh Ponnuru, and Michael J. New offer solutions other than prosecuting the mothers who abort: going after the doctors and removing public funding (“One Untrue Thing,” 2007). They argue that these measures will reduce abortions and thus no need will exist to prosecute the women. Dellapenna and Weber analogize criminalizing abortion with no punishment to criminalizing drugs without a penalty for drug users, which they argue has a successful track record (“One Untrue Thing,” 2007). Garnett suggests that the purpose of criminalization is to show that abortion is morally blameworthy and, “It is simply not the case that time in prison is the only way, or always the best way, to convey this social judgment” (“One Untrue Thing,” 2007). The calls for alternatives to punishing women who abort are appeals to prudence, because the writers justify them on the basis of societal welfare, not strict ethical principles.

Prudence operates distinct from and in tension with the deontological ethics previously deployed by pro-life groups. As Hariman (1991) writes, “prudence designates the capacity for effective political response to contingent events. It arises in deliberation, requires implicit understanding of the possible, the probable, and the appropriate within a specific community, and is not reducible to categorical imperatives, deontologies, or universal laws” (p. 26). The defense of contingency bound up in the call for prudence stands out from clarity of

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<life> and the black and white ethical landscape it invokes. Contingency and deliberation find a more ready home under <choice> and its historically teleological defense.

The move to prudence complicates the previously central argument that a fetus is a person from conception, thus abortion is murder, and murder should be outlawed. If abortion should be outlawed because it is murder, then is it also true that the women who abort face the penalties of murder? The analogies to drug use fail because American society sees drug use as a victimless crime, or at worst, a minor harm, whereas willfully taking a life is one of the greatest social taboos. Once pro-life groups have used <life> to define abortion as murder, they cannot redefine abortion as ethically equivalent to drug use. Justifications for prudence call into question the equal rights of the fetus because a woman who commissioned an assassin (i.e., abortion doctor) to kill any other person would likely face murder charges. Any exception to murder laws, by definition, makes the fetus unequal in the eyes of the law. This undermines the argument that a fetus is a human and thus deserves all the protections under the law that any other human would receive thereby weakening the legal case for making abortion illegal.

The move to prudence also opens the door to pro-choice arguments that pro-lifers could previously dismiss with an appeal to deontological ethics. Many of the symposium writers oppose punishments for women, because they believe these punishments would not significantly decrease the number of abortions when weighed against the harm the punishments inflict on women who abort. Pro-choice individuals have long argued that criminalizing abortions would not decrease the number of abortions, but would instead result in women either traveling to nearby countries where abortion is legal or seeking potentially unsafe illegal abortions (Singh et al., 2009). Pro-choicers often argue that even if one thinks abortion is wrong, it would be more prudent to fund sex education and contraception to decrease unwanted pregnancies (Cohen, 2006). The first line of defense that Alcorn’s (2000) influential book, Pro-Life Answers to Pro-Choice Arguments, puts forth to this proposition is “That harmful acts against the innocent will take place regardless of the law is a poor argument for having no law” (p. 157). Alcorn argues in effect that deontological ethics demand a law whether or not the law reduces crime, another attempt to use a definitional argument to avoid a debate about consequences. The teleological logic of prudence that spares women who have abortions any criminal penalty, however, would weaken this argument. If women who have abortions should not face penalties because it does not substantially reduce total abortions, then, by the same logic, the government need not criminalize abortion if it does not substantially reduce abortions. This is especially true if criminalization results in other adverse effects, like increasing dangerous “back alley” abortions.

The symposium’s second general response to HMJT is to blame agents other than the women who abort. Two major parties get blamed, abortion doctors and the fathers of the fetuses. Dorinda C. Bordlee, executive director of the Bioethics Defense Fund, reframes HMJT to ask, “How much jail time is appropriate for abortionists?” (“One Untrue Thing,” 2007). Snead argues that women shoulder relatively little blame compared to abortion doctors, because abortion doctors “. . . directly perform the lethal action; they are more fully aware that they are snuffing out a human life in process; they are not laboring under any duress; and they perform abortions for profit” (“One Untrue Thing,” 2007). Long says, “Most women who get abortions are under tremendous stress and pressure, and few of them recognize the full humanity of the child in utero. . . Our society instead has decided to punish the abortionist” (“One Untrue Thing,” 2007). Long and Snead repeat the argument advanced by one of the protestors in the Libertyville documentary that a woman’s failure to understand

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her fetus is human absolves her of responsibility. This excuse does not extend to a doctor, presumably, because of her or his medical training. Many of the symposium writers shift blame to the father of the child like Weber, who writes that because “many women . . . have abortions because they are coerced by boyfriends . . . they are the second victims of abortion. To treat them as equally culpable with the professional abortionist is ludicrous and heartless” (“One Untrue Thing,” 2007).

Quindlen (2007) predicts this move in her article and labels it an infantilization of women. She claims “State statutes that propose punishing only a physician suggest the woman was merely some addled bystander who happened to find herself in the wrong stirrups at the wrong time.” According to the logic of the symposium members, women’s fragile state removes their responsibility for their choices even if they lead to murder. The blame lies instead with the abortion doctor and/or unsupportive father.

Prochoice advocates have long argued the logic of the prolife movement infantilizes women. This charge alone appears to have had little impact on the debate. Infantilization in the context of HMJT, however, comes not at the expense of a woman’s access to abortion, but a fetus’ right to equal protection under the law. Read in relation to the pro-life movement’s rhetoric, failure to punish a woman for having an abortion becomes equivalent to not punishing murderers, slavers, and war criminals. The claim that women should not face punishment because they do not understand the humanity of their fetus is especially problematic. Slavery, the Holocaust, and other terrible crimes occurred in large part because their perpetrators did not acknowledge the humanity of their victims, a fact the pro-life movement routinely raises. If failure to acknowledge another person’s humanity excuses violent behavior against that person, it raises the question of whether penalties should exist for these other grave crimes.

Placing blame on other sources also does not excuse a woman for her complicity in abortion. Snead lists a variety of reasons doctors have more responsibility for abortions than the women who elect to abort (“One Untrue Thing,” 2007). But neither Snead nor any of the other writers provide a compelling reason that a doctor’s profit motive excuses women from complicity in murder. Perhaps women are not equally culpable, but assuming without women’s consent abortions would not occur, they must share some culpability. Blaming the abortion doctor also does not address self-induced abortions, which comprise a large percentage of abortions in countries that have criminalized abortion (Sedgh et al., 2008). Heaping blame on unsupportive fathers falls into many of the same traps. It does not address women who abort in opposition to the wishes of the father, nor does it provide a compelling reason that a woman should face no legal sanction. Women may be the second victims of abortion, as some prolife advocates claim, but one can be both victim and victimizer.

It is rhetorically problematic for prolife backers to use fathers and other outside social forces to excuse women from legal sanctions for abortion because this messaging is consistent with the teleology of pro-choice rhetoric. The pro-choice movement never defends abortion as an inherent good. Instead, prochoice rhetoric reminds its publics that given the economic, social, and physical costs of motherhood, women have the right to make decisions that they believe are in their own best interest. By placing blame on doctors who should know better or unsupportive, possibly coercive fathers, the pro-life movement acknowledges the powerful social forces that render rigid justice unjust— by allowing women to escape the rightful punishment for murder. If an unsupportive father can be blamed for the woman’s act of murder, then why not also blame other factors, such as economic necessity, for a woman’s decision to abort her fetus? The move to acknowledge extenuating circumstances that relieve

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women who abort from blame justifies the contextual ends driven arguments that define the pro-choice movement.

The deontological pro-life case operates independently from time, place, or circumstance: abortion is murder always and forever. From this vantage point pro-choice arguments appear as messy equivocations bound to the context of the time, to be dismissed just as one would dismiss the economic arguments plantation owners presented for slavery or the Nazi racial science used to justify the Holocaust. HMJT breaks the clear teleological-deontological divide. In response to HMJT, pro-lifers make excuses for pardoning women for murder bound to the society we presently inhabit. Calls for prudence and efforts to shift culpability acknowledge legal goals beyond the blind application of ethical principles. In effect, prolifers switch from deontological to teleological language.

Conclusion

HMJT departs radically from the tone of much of the ongoing abortion debate. The world of the “overweighed” ideograph sets the stage for political annihilation rather than accommodation. Both sides denounce the other in the strongest possible terms. HMJT takes a different tact and instead of beginning with the assumption that the other side is wrong, takes the pro-life arguments at face value. What should the punishment be for such a terrible crime?

HMJT serves as an enthymematic reductio ad absurdum. The logic of abortion as murder demands a punishment that most pro-lifers and American society writ large cannot accept. Efforts by pro-lifers to explain the disjunction between their description of the problem and their proposed solutions result in a rhetorical detour from their typical clear, efficient, deontological language. The revelation of mismatched topoi of problem and solution moves pro-life rhetoric to the plane of the teleological, where the pro-choice movement staked their claim long ago. Meanwhile, merely raising the question of women’s punishment returns them to a debate where pro-life rhetoric had previously made them invisible.

All of this comes, not from prima facia rejection of the opposition’s premises, but a serious engagement with their premises. The pro-life formulation-abortion is the equivalent of murder, slavery, and the Holocaust-simply cannot be a broadly appealing persuasive force on its own terms. This explains why so many of the National Review responses to the normative question of what the punishment for abortion should be, mention that overturning Roe vs. Wade would not ban all abortions, because the individual states would determine abortion laws. Given the freedom to imagine an ideal legal regime, pro-lifers reintroduce the moderating force of the pro-choice movement. The power of pro-choice forces to block any legislative or judicial efforts to directly curb access to abortion removes the need for pro-lifers to seriously attend to the topoi of solution. Thus, the logical disconnect between the description of the problems of abortion and the proposed punishment for women who cause the problem.

One can make the case that the same is true for the overweighed ideograph of <choice>. In April 2008, Aliza Shvarts, a Yale student, claimed she had artificially inseminated herself multiple times, took drugs to endorse miscarriages, and created a sculpture with the blood of her fetuses for an art project. Despite the entire project later being exposed as a fake, the initial public outcry was tremendous (Kinzie, 2008). If Shvarts had not faked her actions it would be possible to read her entirely legal actions as a performative move to undermine the pro-choice idea of “my body, my choice.” One can imagine a camera crew at a pro-choice

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rally asking how much jail time a woman who has repeated abortions for the sake of art should serve. If the protestors say the woman should face legal sanction, which is possible given the broad public opposition to Shvarts, it would have the potential to disrupt an overweighed <choice> narrative. If Shvarts’ (imaginary) choice should not receive legal protection (e.g., for the sake of the fetus, the sanctity of life, or some other reason) it opens the door to other potential restrictions on women’s abortion choices. Pro-lifers make the argument that advocating unfettered choice to abortion ignores the interests of the fetus (Fox-Genovese, 2004; Harris, 2012). From a pro-life perspective, the Shvarts example focuses the debate around the fetus in a similar manner to how HMJT focuses the debate around women.

Given the ability of HMJT to reframe a debate defined by its stagnation, it has something to say about how to effectively intervene in other debates defined by overweighed ideographs. When the opposition advocates the “complete sacrifice of the opposing values,” the best strategy may be to take their ideas seriously (Condit, 1990, p. 159). People choose particular words to elevate as ideographs precisely because society values these terms (McGee, 1980). Taking an overweighed ideograph seriously demonstrates the way it acts to completely sacrifice another cherished value. This has the power to expose the opposition as extremists and undermine both their argument and their ethos, as HMJT demonstrates.

In a world of overweighed ideographs, the strategy of taking your opponent seriously is becoming increasingly common. The People for the Ethical Treatment of Animals recently claimed SeaWorld’s confinement of whales rendered these animals <slaves> and sued SeaWorld under the 13th amendment. On the Daily Show with Jon Stewart, PETA spokesperson Lisa Lange suggested that the case “could be groundbreaking for all animals” (Albanese, 2012). Rather than attack PETA’s idea directly, correspondent Wyatt Cenac likened Lange’s ownership of her dog Sophie to slavery. Cenac’s move exposed the extreme nature of PETA’s ideograph and put Lange on the defensive. Similarly, when anti-gay marriage groups based their campaign on the ideograph <family>, defined primarily by a man and woman’s ability to procreate, a group of gay marriage supporters responded by pushing Initiative 957. Initiative 957 would dissolve marriages between couples that do not have children for three years after marriage (Turnbull, 2007). The campaign showed how the elevation of <family> does not cohere with policies that anti-gay marriage individuals want. In both cases individuals deployed a HMJT-like strategy to shift their opponents from a simple deontological argument to a more nuanced teleological defense of their position.2 These cases, and many more like them, call out for more in-depth scholarship.

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