This is what Mark Steyn called it. Is he fair in doing so?
Here are the basics of the awful story:
Katrina Effert was 19 on April 13, 2005, when she secretly gave birth in her parents’ home, strangled the baby boy with her underwear and threw the body over a fence into a neighbour’s yard.
In a recent legal ruling, it was determined that Katrina would get no jail time for this act. Steyn and many in the pro-life community interpret this as just a logical extension of the reasoning of abortion. Yes, an infant is a human being, but such a being is not yet morally valuable because she is not yet rational or self-aware or able to exchange in sophisticated relationships. If her mother doesn’t want to be her mother anymore, or anyone else to be her mother (i.e. drop the baby off at the hospital no questions asked), then she may have an ‘abortion’ because it is her right to choose. And the judge herself (who overturned the decision of two Canadian juries to consider this second degree murder) used to similar reasoning:
The fact that Canada has no abortion laws reflects that “while many Canadians undoubtedly view abortion as a less than ideal solution to unprotected sex and unwanted pregnancy, they generally understand, accept and sympathize with the onerous demands pregnancy and childrbirth exact from mothers, especially mothers without support,” she writes.
The judge noted that infanticide laws and sentencing guidelines were not altered when the government made many changes to the Criminal Code in 2005, which she says shows that Canadians view the law as a “fair compromise of all the interests involved.”
“Naturally, Canadians are grieved by an infant’s death, especially at the hands of the infant’s mother, but Canadians also grieve for the mother.”
But there are at least two complicating factors which push back against the view that this act is like a fourth trimester abortion. The first claims that abortion is really about a woman’s body and whether or not the state or anyone else can compel her to use that body to gestate a child. This case obviously goes beyond that question. The second invokes the psychological state of the mother after birth. Postpartum depression is a real thing and should mitigate punishment in cases where it contributed to the act. And, indeed, this was one of the major factors the judge invoked.
But in doing so she overturned the decision of two juries who had already heard arguments about the mother’s state of mind. And some will argue that any infanticide is the result of mental illness virtually by definition:
Any mothers in true cases of infanticide would not be of a stable enough mental state to carefully consider the legal consequences — thereby being deterred — during the act: it’s simply not possible under the conditions of the crime. Yes, the possibility exists that some might try to use mental illness as a false defense, but that should not be used to criticise its use in an honest defense.
But I wonder if the moral status of the child can be avoided as a major factor here. Are we really as quick to leap to a mental illness defense if a parent, who is similarly stressed and overwhelmed, kills her 2 year-old? How about her 16 year-old? I’m just not so sure our culture actually thinks that the newborn child is on the same moral level as other children. We have had serious arguments about how much of the child’s body should be left inside the mother when doing partial birth abortion, for instance. And while we will permit medical infanticide for newborns we do not permit it for older children. Peter Singer has argued that the acceptance of abortion rights was the beginning of a ‘Copernican Revolution’ in ethics where an indefensible sanctity of life ethic, in which human life is considered the center of the ethical universe, started to slowly wane in influence. Acceptance of infanticide will eventually come, he says, as the influence of the Judeo-Christian tradition wanes even further.
Is this legal case evidence he is right? Or is this really about protecting mentally ill mothers from a mob mentality? Or is there something else going on here?
Charlie,
I agree with your scary observations about our culture. And, I think Singer is correct about the waning influence of sanctity of life ethic (and virtually non-existent sway of the image of the consistent ethics/ seamless garment) in our culture – and as that goes, it is not as large a jump to infanticide as many would like to imagine/assume it is.
There are; however, a couple of other distinctions that I think need to be brought into considering this case…You rightly bring in the reality of postpartum depression. I think the fact that the mother in this case was 19 years old is also relevant. While legally an adult, this mother is still an adolescent and developmentally that is relevant to questions of her psychology, punishment, etc. I also think proximity to delivery requires a different set of questions regarding postpartum and capacity. We know hormones play a part in mental illness, physiologically making an adolescent already exhibiting signs of mental instability through the pregnancy culminating her killing her baby at delivery. However, the distinction must also be made between postpartum depression but a longer term psychosis. –there is a distinction between depression and psychosis. Denial of pregnancy is an indicator of a greater psychosis that extends into the pregnancy not simply the same as postpartum depression. Postpartum depression tends to develop over time.
Another complication to your final set of questions – our culture’s response/lack thereof to mental illness. Just as I agree our culture does not respect the full moral status of the infant – so too it doesn’t really deal with mental health. In some ways, it appears like it is becoming a catch all here for crimes/actions “we cannot fathom” which isn’t actually the point. Mental health testing, treatment, sustained therapy and services – all of these are severely lacking in the US (I do not know Canada’s mental health programs). I think that has to be dealt with and considered if we are to have a substantive discussion of the questions you ask at the end of this post.
I don’t have time to research it now, but I will go out on a limb and say it is very common for mothers who commit neonaticide to be treated leniently in most cultures, including our own. In the most sensational case I can remember, a teenage girl and her boyfriend were sentenced to 2.5 and 2 years, respectively.
I would point out that it is a rare “pro-lifer” who is even willing to discuss the idea of holding a woman legally responsible for procuring an abortion. The pro-life movement considers it “scare tactics” on the part of “pro-choicers” to even bring up the possibility that there will ever be punishment for women who procure abortions. Those in the pro-life movement insist that abortion is murder, and yet they insist that women who procure abortions should not be held legally accountable, often based on an argument that such women are not morally culpable and are in fact the “second victims” in abortion.
It hardly would make sense for “pro-lifers” to call for harsh treatment of neonaticide when they do not hold a woman responsible for abortion. Those who are pro-choice make a distinction between abortion and neonaticide and would be consistent to punish only the latter. But “pro-lifers” who consider both to be murder but who absolve the mother of responsibility and guilt for abortion are, it seems to me, actually on weaker ground than “pro-choicers” in expecting a mother who kills her newborn to spend any time in prison.
David…do you think this could be because many prolifers really see abortion as a refusal to sustain a person and infanticide is more obviously direct killing?
Charlie & David,
I do not think it is necessarily about “refusal to sustain a person” vs. “direct killing.” Among other things, there is a complicate social structure and culture which does not provide sufficient support for pregnant women, mothers and children. Sidney Callahan’s famous essay “Case for Pro-Life Feminism” is an excellent example of a different way of framing the discussion/debate.
Charles,
I can’t see how it can be claimed that “pro-lifers” see abortion as “refusal to sustain a person.” That is an argument that some “pro-choicers” make (the “famous violinist” scenario). The pro-life movement and the Catholic Church insist that abortion is murder—the direct killing of an innocent human person. Gestational age is irrelevant. Whether or not the infant is “pre-born” or “post-born” makes no moral difference. Personhood, including the right to life, is present from conception. I can’t see why “pro-lifers” should view neonaticide committed by the mother as significantly different from abortion.
The pro-life position on not punishing women for procuring abortions if abortion should again be criminalized is well known, and debates about it never get anywhere, so I am not proposing we should debate it again here. But it makes absolutely no sense at all to me to criminalize abortion and not hold a woman who procures an abortion responsible in some way. It wouldn’t have to be jail time. It wouldn’t have to be enforced. It could be a $5 fine. At least the message would be, “You shouldn’t procure an abortion.”
Louisiana has a “trigger law,” set to go into effect if Roe is overturned. The penalties for a doctor performing and abortion would be $100,000 fines and up to 10 years in jail. Can think of any other crime where the person who commits it is punished so severely but the person who arranges to have it done and pays for it is completely innocent before the law?
That is an important issue Meghan, of course, but how does it help explain the disconnect that David is highlighting?
David, I’m a pro-lifer, and I speak and write this way all the time. And I think it is more a part of pro-life thinking than you know. Language about ‘taking responsibility for one’s actions’ is often used often by pro-lifers. Much of the debate between many lifers and choicers lies in the relationship between having sex and responsibility for pregnancy. Implicit in these kinds of arguments is the idea that abortion is a refusal to sustain a fetus with one’s body. This is obviously different from infanticide.
I think, for me they are connected, because I don’t think you can have an adequate conversation about guilt/punishment/responsibility without the social context. But, this is why, as a pro-life feminist, I find language that focuses on taking responsibility for one’s actions without the broader social question highly problematic. It cedes the debate to those who argue its all about choice – and it contributes to the further marginalization and vulnerability of women in crisis.
This gets to the issue of criminalization and punishment – and that fact that I don’t see an inherent inconsistency in pro-lifers not calling for punishment for women who procure abortions. we have a long tradition that recognizes that “murder” as a moral category establishes that something is unjust killing — but that doesn’t tell us guilt, context, moral culpability or justified punishment.
we have a long tradition that recognizes that “murder” as a moral category establishes that something is unjust killing — but that doesn’t tell us guilt, context, moral culpability or justified punishment.
Meghan,
As I asked above, can you think of any other crime where the person who commits it is punished so severely ($100,000 fine and up to 10 years in prison) but the person who arranges to have it done and pays for it is completely innocent before the law? Abortion, by its very nature, is premeditated. And in any given year, approximately half of women who procure abortions are repeat customers.
If there is a category of “unjust killing” in the United States where it is automatically assumed that the person is not sufficiently guilty of culpable to merit any punishment whatsoever, I can’t think of it. The reason we have jury trials in the United States is to determine context, moral culpability, and just punishment.
By all means, let’s recognize that many women who procure abortions often find themselves in very difficult situations, sometimes pressured by others, feeling they have no alternatives. But that is no doubt true of people who embezzle money, write bad checks, leave the scene of an accident they are responsible for, perjure themselves, and commit any number of crimes right up to, and including, murder.
The woman in the story under discussion, by the way, does not get off scott free. The story doesn’t specify what she will have to do during her 3-year-suspended sentence, but it is clear she is under some constraints.
I just can’t get away from the fact that “pro-lifers” insist that abortion is murder. Mother Teresa called abortion “murder by the mother herself.” Pope John Paul II called it murder. The Church excommunicates women who procure abortions but not women who commit infanticide. And yet most “pro-lifers” seem opposed to any penalty whatsoever to “murder by the mother herself.” Not even a $1 fine. Not even a $1 for the second or third abortion.
Now, as a purely pragmatic approach, this is understandable. People in general just don’t want to see women punished for procuring abortions. But I don’t see how it can be called justice.
What counts as justice? when have we achieved justice? whose justice? I grant you that very little in the current discussion remotely looks like justice….I suspect one difference in our approaches is perhaps you are thinking about justice primarily in a legal context? where I am not…I am not claiming there is justice in either punishing or not punishing – I think the question of justice is far more complicated then simply legal justice. What are we trying to accomplish? how are we trying to accomplish justice? And -what is the role of legal justice in accomplishing this goal?
What seems to you like “letting them off the hook” or inconsistent – is I think best summed up in the approach of a common bumper sticker – Abortion: One dead, One Wounded. Is retributive justice the primary approach? or restorative justice and healing?
What counts as justice? when have we achieved justice? whose justice?
Meghan,
I raised a question a couple of times before about laws which impose a $100,000 fine and up to 10 years in prison for a doctor who performs an abortion, but imposes no penalty at all on a woman who schedules, submits to, and pays for an abortion. It seems to me unparalleled in criminal justice, and I think it offends a simple sense of fairness. How blameless can I be if recruit someone to do something for me and pay him for it, and as a result, he is sent to prison and I am totally blameless in the eyes of the law?
There is also the question of what the role of the law is—teacher of virtue, or keeper of order? What do antiabortion laws teach when they have no penalty whatsoever for a woman who hires a doctor to abort her children?
I just ran across a pro-life site that estimates 93% of abortions are to solve “social problems.” For example:
• Woman is concerned about how having a baby could change her life 16%
• Woman is unready for responsibility 21%
• Woman has all the children she wanted, or has all grown-up children 8%
After quoting those statistics (from Guttmacher) the site says: “Now don’t misunderstand me, I am not saying that these social-problem reasons are all frivolous. Sometimes they are legitimate, serious problems. But … under what other circumstances would we accept the idea that one person has the right to kill another person to solve his or her social problems?”
It is ironic that so much of what the pro-life movement is doing at the moment is trying to impress upon women who are contemplating abortion what they will be doing, and yet pro-lifers are adamant about not using the law to tell a woman who has had an abortion anything at all about what she actually did.
As for “restorative justice and healing,” if abortion is criminalized, why not require a woman who has had an abortion to go through some kind of treatment program, as is done with people who abuse drugs or alcohol? I am not insisting the only fair thing to do (if you consider abortion to be a woman killing her own children) is to lock the mother behind bars. If you honestly consider her a victim, why not require some kind of treatment?