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Wednesday, October 01, 2008

Abortion/Criminal Law Bleg

In an interview broadcast last night, Katie Couric asked Sarah Palin the following question: "If a 15-year-old is raped by her father,you believe it should be illegal for her to get an abortion. Why?" Here's part of Palin's answer (after Couric followed up by repeating the question):

I'm saying that, personally, I would counsel the person to choose life, despite horrific, horrific circumstances that this person would find themselves in. And, um, if you're asking, though, kind of foundationally here, should anyone end up in jail for having an … abortion, absolutely not. That's nothing I would ever support.

This is an intriguing position for someone whose position has regularly been characterized as opposing the legality of abortion except when the mother's life is at risk. That said, it bears an intriguing resemblance to John McCain's own position from January, 2000:

On “Meet the Press,” McCain said he had “come to the conclusion that the exceptions for rape, incest, and the life of the mother are legitimate exceptions” to an outright ban on abortions. “I don’t claim to be a theologian, but I have my moral beliefs.” If Roe v. Wade is overturned and abortion outlawed, McCain said he believes doctors who performed abortions would be prosecuted. “But I would not prosecute a woman” who obtained an abortion.

Here's what I'm wondering. A medical (as opposed to self-induced) abortion involves both a doctor and the woman obtaining the abortion. It's not possible for the abortion to occur without the woman's involvement.

1. Given that that involvement is voluntary, my non-lawyer's take is that if performing the abortion is itself a criminal act, then seeking it out and permitting it to occur would seem to involve sort of conspiracy behavior. Is that right?

2. And in any case, how can the same act be a crime for one participant but not the other, especially when there is no question as to the mother's desire to commit the act and awareness of its effects?

3. Are there any other cases of acts that are criminal for one group of participants but not another, given that all groups understand the act's effects and participate voluntarily? (Note: I am not asking whether there are cases in which one party to a crime would not be prosecuted even though another is. That's a totally different issue, obviously.)

Thanks in advance for any info!

Posted by Jonah Gelbach on October 1, 2008 at 03:48 PM in Criminal Law | Permalink


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Luis explains cogently my basic point. At the risk of belaboring things overmuch--but useful in case you want to track things down a bit--here's a discussion of the relationship of excuses, justifications, and complicity from a case in Dressler's casebook, US v. Lopez, 662 F.Supp. 1083, 1085-86 (N.D.Cal. 1987):

Justification defenses are those providing that, although the act was committed, it is not wrongful. For example, a forest fire is burning toward a town of 10,000 residents. An actor burns a field of corn located between the fire and the town in order to set up a firebreak. By setting fire to the field with the intent to destroy it, the actor satisfies all the elements of the crime of arson; however, he most likely will have a complete defense because his conduct is justified. Burning the field avoided a greater societal harm; therefore, the act is not a crime. See P. Robinson, Criminal Law Defenses § 24 (1984); Comment, Necessity Defined: A New Role in the Criminal Defense System, 29 UCLA L.Rev. 409, 413 (1981).

When a defense is categorized as an excuse, however, the result is that, although the act is wrongful, the actor will not be held accountable. "Where the actor is not blameworthy, for reasons of either incapacity or extreme pressure, there is not criminal liability." Comment, supra p. 4, at 414. Thus, an insane person who robs a bank will be excused from liability.

Simply stated, when a defendant prevails on a justification defense, no wrongful act occurred; the act itself becomes lawful. If a defendant succeeds on a defense classified as an excuse, a wrongful act occurred; however, no criminal liability is attached to the actor.

The classification of a defense as a justification or an excuse has an important effect on the liability of one who aids and abets the act. A third party has the right to assist an actor in a justified act. Therefore, a third party could not be held liable for aiding and abetting the arson described in the hypothetical above. In contrast, a sane getaway driver could be convicted of aiding and abetting an insane person's bank robbery. Excuses are always personal to the actor. See G. Fletcher, Rethinking Criminal Law § 10.1 (1978); P. Robinson, supra p. 4, § 37(a); Williams, The Theory of Excuses, Crim.L.Rev., Nov. 1982, at 732, 735; Comment, supra p. 4, at 414-15.

As to the policy issue, I think it depends on whether it's sensible to adopt a rule that views abortion-seeking mothers as presumptively under excusably-great pressure. The basic thought would be something I heard once: "A woman wants an abortion the way an animal caught in a trap wants to chew its leg off."

Posted by: Chris | Oct 2, 2008 10:00:02 AM

Sam: thanks much for the reference -- I will look up your note when I get back from my trip (I'm headed away for a wk, momentarily).

Luis: thanks also for your very interesting reply. I understand your point about the distinction between justification and excuse. But my primary interest here (given that there's nothing special about making one party to an act a criminal and not another) is on the *policy* issue. The excuse argument you're discussing seems like a fine issue to raise as a defense to specific criminal charges. It's less clear to me that it's a blanket reason to define any instance of a pregnant woman's obtaining an abortion as non-criminal. Without recourse to specific excusing facts, that position (which I'm not imputing to you) would seem tough to sustain as a policy matter.

Posted by: jonah gelbach | Oct 2, 2008 9:41:01 AM

Hi Jonah,

McCain's position can be theoretically explained by making recourse to the justification/excuse distinction. Affirmative defenses can either be justifications or excuses. Justified conduct is not punished because it is not wrongful. That is, justified conduct is the right (or at least socially permissible) thing to do under the circumstances. This is the case, for example, with self-defense. If you kill an individual in self-defense you act justifiably, for your conduct is, all things being considered, not wrongful. Furthermore, since justifiable conduct is not wrongful, you have a right to engage in the conduct (we have a right to act in self-defense, for example).

Excuses, on the other hand, negate the blameworthiness of the actor without excluding the wrongfulness of the act. Think, for example, of an insane aggressor who kills an innocent person. The reason why the insane aggressor is not punished is clearly not because his conduct is not wrongful. His act is certainly prohibited and, therefore, unlawful. It wouldn't make any sense either to claim that the insane offender had a "right" to kill the innocent person. In such cases we acquit the actor because he performed the admittedly wrongful act in a non-culpable manner (because of his mental impairment). Duress is another example of an excuse. A person that harms an innocent human being he is being coerced to do so acts wrongfully but non-culpably. Thus, the coerced individual does not have a "right" to harm the innocent being. However, he may be relieved of responsibility out of compassion for his predicament.

In sum, justifications such as self-defense or law-enforcement authority speak to the rightness (or permissibility) of the act, whereas excuses express compassion or understanding for conduct that is nevertheless wrongful.

This, I think, explains why the mother may be acquitted eventhough the doctor is held criminally liable. If the mother's conduct is excused out of compassion for her personal circumstances, her excuse defense is personal and does not transfer to the doctor. Since the doctor is not under the same psychological pressure than the mother, he will usually not be able to establish an excuse.

Finally, I should clarify that there is no contradiction between claiming that someone should be excused while simultaneously claiming that the person performed a wrongful act. Take, for example, the case of an insance aggressor. Even though he would be relieved of criminal responsibility as a result of the insanity defense, his conduct would still be considered wrongful. This explains why in most common law jurisdictions the insane aggressor would be held liable in tort for the damages caused by his wrongful conduct.

Posted by: Luis Chiesa | Oct 2, 2008 9:03:28 AM

Can I entice you to read my student note, written many years ago (and just prior to Casey), which deals at length with these questions? Its argument: There is no good argument grounded in criminal law that the woman is not responsible. But throughout history legal systems that have tried to criminalize abortion have tied themselves in knots trying to find ways not to criminalize the woman. Lesson (here's where I get normative): The story, especially the nature of the contortions to avoid liability, shows that efforts to criminalize abortion aren't really about punishing the taking of life, but rather have to do with codifying paternalistic attitudes towards women. See 66 NYU L Rev 1774. An interesting footnote is that one of the touching-off points for my discussion is an exchange during the 1988 campaign in which H.W. Bush's campaign was forced hastily to walk back some comments that suggested he would criminalize the woman.

Posted by: Sam Buell | Oct 2, 2008 8:32:43 AM

It seems pretty clear to me that the mother could have a Thomson-violinist-style excuse that the doctor wouldn't have. Frequently conspiracy or complicity situations will involve excuses that are unique to one participant.

Posted by: Chris | Oct 1, 2008 10:01:23 PM

I can easily see the same distinction in other contexts.

(1) Prosecuting a drug dealer but not an addict.
(2) " a usurer but not the poor man who takes the loan.
(3) " a pimp but not a prostitute.

and so forth. The interesting question is whether you see or don't see an element of coercion or not. If you see the whole exchange as involving two free agents, then the real complexity comes out. But first the burden is to prove that there are situations in which the woman procuring the abortion is acting freely, which is not at all obvious.

And if she is, can't you make the same moral distinction as between one who enables cultural acceptance of a vice and those who partake? (Pornographer being more culpable than the customer?). And can't you also claim that the doctor is in a greater position to know the immorality of his or her actions? Could it be a strictly pragmatic criminal law that would, in the same vein, be disincentivizing certain behavior at the locus of most efficient coercion? Could it also be that women in these positions have perfectly inelastic demand?

Posted by: AndyK | Oct 1, 2008 8:20:34 PM


Thanks for your detailed and informative comment. For the record, I totally agree with your final point: if you make doctors criminals, few will be willing to provide abortions, even in clandestine locations.

And if I were doing PR for the anti-abortion rights side, I would certainly not advise proposing to jail women. I was just curious whether the asymmetric treatment was legally, as opposed to morally, defensible. You guys have convinced me that there are enough examples to make the asymmetry legally defensible.

On a moral/policy level, on the other hand, I think it's indefensible to say one would jail licensed doctors but not their willing patients: if abortion is legally murder, for instance, then surely on an ethical level a woman seeking one is no less a murderer than is the doctor performing it.

Anyhow, thanks again to all the commenters.

Posted by: jonah gelbach | Oct 1, 2008 6:04:35 PM

1. Given that that involvement is voluntary, my non-lawyer's take is that if performing the abortion is itself a criminal act, then seeking it out and permitting it to occur would seem to involve sort of conspiracy behavior. Is that right?
It is possible that seeking out an abortion could be a conspiracy, depending on the statute, but that would not necessarily be true. Conspiracy requires a joint purpose, and that would not necessarily be fulfilled merely by permitting an act to occur.

Even if general principles would mean that a woman seeking an abortion might be involved in a conspiracy, there is nothing to stop the legislature from saying that a woman cannot be found guilty for conspiracy merely because she sought out or consented to an abortion.

3. Are there any other cases of acts that are criminal for one group of participants but not another, given that all groups understand the act's effects and participate voluntarily? (Note: I am not asking whether there are cases in which one party to a crime would not be prosecuted even though another is. That's a totally different issue, obviously.)

Trafficking in an illegal drug is another example of an act that is criminal for one of the participants but not for another (of course, the buyer is likely going to be guilty of possession of the drugs but that is a distinct, and usually less serious, offence).

I have never heard of a buyer of drugs being found guilty of conspiracy to traffic, although I could not say with confidence that has never happened.

McCain's, and Palin's, position would, in my opinion, be little better for women than an outright criminalization of abortion, because they would have to seek out expensive, and likely dangerous, black market abortions. But I don't see any legal problem with banning abortion and punishing abortion providers while not punishing women who obtain or attempt to obtain abortions.

Posted by: Nathan | Oct 1, 2008 5:51:12 PM


Thanks -- good examples!

Posted by: jonah gelbach | Oct 1, 2008 5:34:52 PM

Physician-assisted suicide? (Though I suppose attempted physician-assisted suicide would be the better comparison for obvious practical reasons).

Practicing law or medicine without a license (with the client/patient's informed consent).

Negotiated employment agreements that violate wage & hour laws.

Posted by: JP | Oct 1, 2008 5:27:16 PM


Thanks a lot for the informative comment. I hadn't thought of statutory rape--good example. That said, isn't the point with statutory rape is that minors for s.r. purposes are supposed to be incapable of consenting? And, if so, then I think this example would work only to justify not jailing those who are minors for s.r. purposes, not adults.

Personally, I question whether it makes any sense to regard only women with good partners and enormous financial resources as those with an uncoerced will (note: maybe uncoerced will is a legal term of art, but I am using it colloquially). If these conditions are necessary for action to be considered uncoerced when it comes to abortion, then shouldn't pregnant women of less than Buffetian means be entitled to knock over a liquor store to pay for food and rent? And shouldn't they be given the same rights after giving birth? Why the distinction between this and all other potentially criminal acts?

Posted by: jonah gelbach | Oct 1, 2008 4:28:43 PM


A quick response:

1) That could involve a conspiracy to commit a crime, if it were legally characterized, etc. as such.

2 & 3) Statutory rape is an example where it is absolutely criminal for one participant, i.e., the older individual, but not criminal at all for the younger individual.

What you might consider here is the question of will - that is (and I cannot say yet how much I agree with this), for a woman to have an abortion, in most cases is she acting entirely out of an uncoerced will? If she had a perfect partner and 100 million in the bank (for example), would she nonetheless have an abortion?

Generally, we wouldn't view the abortion doctor with the same question of coercion of will, I would think.

Does this make sense?


Posted by: Jonathan | Oct 1, 2008 4:15:23 PM

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