Response to Quindlen

National Review Online is hosting a symposium of sorts, responding to Anna Quindlen's claim that, with respect to the question of criminalizing abortion, “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. If you can’t countenance the first, you have to accept the second. You can’t have it both ways.”  Here is what I contributed:

In “How Much Jail Time,” Anna Quindlen contends that, with respect to the question whether abortion should be criminalized, “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. If you can’t countenance the first, you have to accept the second.” No, you don’t.

The point of criminalization, after all, is not merely to put people in prison, or deter people from engaging in harmful behavior. It is, instead, to make a statement — a public statement, in the community’s voice — that certain actions, or certain harms caused, are morally blameworthy. It is simply not the case that time in prison is the only way, or always the best way, to convey this social judgment.

It is this judgment — and not the particular way it is expressed, or even the consequences that follow — that best distinguishes the workings of the criminal law from, say, the law that governs compensation for accidents. And, it is not “hypocritical” — nor, contrary to Ms. Quindlen’s suggestion, does it “ignor[e]” or “infantaliz[e]” women — to think that the law may, and even should, give tangible expression to our commitment to the dignity of every human person — including unborn children — in ways that do not require prison terms for women who have abortions, or that treat them differently from doctors who perform abortions.