Quaker asks:

If the state may override a woman's bodily autonomy in prohibiting her from procuring evil, why should that bodily autonomy then weigh in their decision on whether to punish her for the procurement?

While I appreciate Will's gracious (and prompt!) response , I'm not entirely sure I understand where he's going. I realize that there are pro-choice arguments to be made against maternal criminal liability, but isn't it slightly odd for those arguments to then be deployed on the pro-life side? I was under the impression, after all, that one of the core pro-life positions is that the state's interest in protecting fetal life is sufficiently urgent and important to trump a woman's interest in autonomy and bodily integrity. If the state may override a woman's bodily autonomy in prohibiting her from procuring evil, why should that bodily autonomy then weigh in their decision on whether to punish her for the procurement?

As for the point about mercy for the desperate or the weak: as I said several months ago, one might just as easily extend that argument to a woman who gives birth and then abandons the baby to exposure. Such a woman is certainly desperate, and possibly weak as well. The moral status of the baby is, from the pro-life perspective, not meaningfully different from that of a fetus. Yet, given the furor that results whenever a prominent baby exposure case comes to national attention, I would be very much surprised if people would urge that a woman who committed that action not be punished. That difference (inconsistency?) calls the mercy argument into question, to my mind.

Rosen's essay, for me, merely recapitulates the basic puzzle. Yes, many citizens think it would be cruel to punish women who make the choice to have an abortion, and yes, this may be a rational (if inconsistent) way for the state to balance the beliefs of its citizens on when life begins with their beliefs on how to punish the commission of abortions. Yet Rosen still doesn't answer my question of why it is generally cruel for the law to act that way, what it means to believe in that cruelty, or why one's belief in the cruelty of the law should carry the day in this case, but not so many others. (I note that in some situations where applying the law would be cruel for obvious reasons, such as rape and incest, the solution is not simply to exempt women from punishment, but exempt the situation from prohibition entirely).

This is getting somewhat long, but I want to quickly address Rick Garnett's latest post on the subject. He argues, as I understand it, that the motives for prohibiting and punishing abortion go beyond mere deterrence, but also to communicating society's moral disapproval of the taking of a human life (i.e., the fetus), which communication is accomplished through punishment of the abortion. That's fine as far as it goes, but I'm afraid I again fail to see why that moral disapproval could not be made even stronger and more plain through punishment of the mother as well as the doctor.