The Ethics of Death: An Analysis of Abortion and the Death Penalty

The Ethics of Death:
An Analysis of Abortion and the Death Penalty
Dennis Schroader
Phi 107
Tirizia York
April 19, 2010

The state sanctioned termination of life – particularly as it applies to capital punishment and abortion – is an ethical quagmire generating heated debate on both sides of these issues and endless fodder for politicians and pundits alike. This essay attempts to analyze the history of both capital punishment and abortion as it relates to United States Supreme Court decisions, the ethical arguments for and against each, and then answer the question of whether consistency allows an individual to take a “pro” position on one issue while taking an “anti” position on the other.

In order to accomplish this, it is important first to establish the meaning of consistency. In the textbook used in the class for which this essay is written, Bruce Waller states, “…allowing contradictions within my views makes it possible to prove anything, and thus makes careful critical thinking impossible” (2008, Kindle location 547). Therefore, it is assumed for the purposes of this essay that an analysis of consistency is both appropriate and desirable for furtherance of the ultimate goal of determining the answer to the question posed in the paragraph above. This analysis calls for a bit of historical context. As with many such controversial topics, the Supreme Court of the United States issues forth the final word on constitutional legality.

A Brief Legal History
With regard to capital punishment, the Supreme Court, decided in a five to four decision, in favor of the plaintiffs in the case of Furman v Georgia (1972), a consolidated case which included Jackson v Georgia and Branch v Texas. This decision hinged upon the apparent inconsistency with which the death penalty had been applied in the cases and states considered. The majority ruled that a requirement exists for consistency in the application of capital punishment – note, not that capital punishment is, in and of itself, cruel and unusual – thus imposing a de facto moratorium on executions in the United States.

This moratorium was effectively overturned in 1976 with Gregg v Georgia, another consolidated case which included Proffitt v Florida, Jurek v Texas, Woodson v North Carolina, and Roberts v Louisiana, also known as “the July 2” cases.” This seven to two decision established the guidelines by which states may impose capital punishment. The first is that they must provide objective criteria to direct and limit death sentencing, which must then be ensured by appellate court review of all death sentences. The second guideline required the states’ death penalty statutes must allow the judge or jury to take into account the character and record of the defendant. By establishing these guidelines for the states, the Supreme Court made clear the requirement for consistency, established a method to ensure it, and gave the states a way to legally apply capital punishment once more. Other, later cases established further restrictions and requirements on capital punishment: forbidding capital punishment for the crime of rape (Cocker v Georgia, 1977), restricting application in cases of felony murder (Enmund v Florida, 1982), exempting the mentally handicapped (Atkins v Virginia, 2002) and exempting juvenile murderers (Roper v Simmons, 2005), among others.

The legal history of abortion is another story altogether. Legal abortion existed under English Common Law and is found in the writings of James Wilson, one of the founding fathers of the United States:

“With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger” (On the Natural Rights of Individuals, 1790-1792).

Upon first reading, this may not seem like much of an approval for terminating life in utero, however, the statement that “life begins when the infant is first able to stir in the womb” (Wilson) leaves room for the time from conception and implantation through those months where such stirring either does not happen or is perhaps undetectable. Moving forward to the late 1960’s, the Supreme Court ruled on a number of cases that either directly or indirectly affected the legality of abortion under certain circumstances. Additionally, the state legislatures of at least twenty states had passed laws making abortion legal to varying degrees – restricted in sixteen of the twenty and only available on demand in Washington, Alaska, Hawaii, and New York. In 1973, the Supreme Court effectively removed the major barriers to abortion (Roe v Wade), and all subsequent rulings have served only to expand its access and applicability, with the exception of Gonzales v Carhart (2007), which upheld the Partial-Birth Abortion Ban Act of 2003.

Ethical arguments
The legal matters, for the present, being settled, it becomes incumbent upon the individual to analyze the ethical arguments for and against. With regard to the matter of capital punishment, Louis Pojman provides a persuasive ethical argument in favor of punishment as retribution for the commission of crime:

 “The retributivist holds three propositions: 1) that all the guilty deserve to be punished; 2) that only the guilty deserve to be punished: and 3) that the guilty deserve to be punished in proportion to the severity of their crime” (Pojman, in Waller, 2008, Kindle location 8242).

“People often confuse retribution with revenge. Governor George Ryan, who recently commuted the sentences of all the prisoners on death row in the State of Illinois,… quotes a letter from the Reverend Desmond Tutu that ‘to take a life when a life has been lost is revenge, it is not justice.’ This is simply false. While moral people will feel outrage at acts of heinous crimes,… the moral justification of punishment is not vengeance, but desert.” (Kindle location 8248).

Another argument in favor of capital punishment is that of deterrence. This is perhaps the most controversial of the utilitarian lines of reasoning and the counter argument is presented later. In an article in The American Economic Review, Isaac Ehrlich states, “Contrary to previous observations, this investigation, although by no means definitive, does indicate the existence of a pure deterrent effect of capital punishment” (1975). The specifics of his investigation, while fascinating, extend far beyond the scope of this essay. Let it therefore be sufficient to say that Ehrlich’s research did indeed indicate the existence of a deterrent effect.

The ethical arguments against capital punishment receive equal thought and consideration by modern philosophers. One such, Stephen Bright, refutes the deterrent effect, claiming, “Nor is crime deterred by the executions in fewer than half the states of an arbitrarily selected 1 percent of those who commit murders, many of whom are mentally ill or have limited intellectual functioning.” (Bright, in Waller, 2008, Kindle location 7997). Bright goes on to indict the judicial system that applies such sentencing as fatally flawed, stating, “The race of the victim and the defendant, political considerations, and other extraneous factors influence whether prosecutors seek the death penalty and whether juries or judges impose it.” (Bright, in Waller, 2008, Kindle location 8042). In both cases, his argument seems to echo the thinking of the Supreme Court.

Another argument against capital punishment is that of simple economics. While that may not, on its surface, seem an ethical consideration, the fiduciary duty of the state to spend wisely the taxpayers’ money is, in every way, an ethical consideration. In this line of thinking, Corinna Barrett-Lain, a professor and former prosecutor, while writing for the Christian Science Monitor states:

“The bittersweet reality is that money, rather than morality, has become the tipping point for saving lives. Why? Administering the death penalty is breathtakingly expensive. Contrary to popular opinion, it costs substantially more to execute people than to send them to prison for the rest of their lives. In California, which houses the nation's largest death row, it costs about $137 million annually to maintain the state's death penalty system. The state has conducted only 11 executions since reinstating the death penalty in 1978, bringing the average cost per execution to $250 million. That's right – a quarter of a billion dollars per execution” (Barrett-Lain, 2009).

While clearly not intending to make an ethical case against capital punishment, hers is, nevertheless, damningly effective, particularly given the current economic climate in the United States, and particularly California, which is the subject of her article.

As it relates to abortion, the ethical debate focuses on the rights of the mother and those of the unborn child. Making a completely rational argument in favor of so-called “reproductive rights”, Brian Rice, while apparently a simple blogger, makes an effective utilitarian argument when he writes:

“When using the rule-utilitarian consequential principle of ethics, we establish a set of general morals and rules in which we can apply to every moral question based upon our utilitarian findings. When this is applied to abortion, we can see that abortion is a completely ethical entity that provides the greatest amount of happiness for the greatest amount of people.” (Rice, 2006).

Elisabeth Porter, an Australian professor and researcher, arguing in favor of the “special rights” of women, writes:

“Given women’s body, sexuality, and reproductive potential, reproductive rights affirm equality as an extension of the principle of bodily integrity and self-determination. Given the social position of women, a defense of autonomy in important. Insofar as women are not only responsible for pregnancy but also usually for the care of children, women must be the ones who ultimately decide on contraception, abortion, and childbearing.” (Porter, 1994).

The voices against abortion make similarly impassioned cases on their side of the debate. Such notables as Susan B. Anthony and Norma McCorvey – aka Jane Roe, of Roe v Wade - neither of whom presumably require introduction, have lent their weight to the struggle to end abortion in the United States. Anthony, in her publication, The Revolution, wrote:

"Guilty? Yes. No matter what the motive, love of ease, or a desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will burden her conscience in life, it will burden her soul in death; But oh, thrice guilty is he who drove her to the desperation which impelled her to the crime!" (Anthony, 1869)

Here she indicts not only the woman who “commits the deed”, but especially the man who drove her to it. As is well known, Susan B. Anthony was a 19th century women’s rights activist, so is Norma “Jane Roe” McCorvey:

“I felt "crushed" under the truth of this realization. I had to face up to the awful reality. Abortion wasn't about 'products of conception.' It wasn't about 'missed periods.' It was about children being killed in their mother's wombs. All those years I was wrong. Signing that affidavit, I was wrong. Working in an abortion clinic, I was wrong. No more of this first trimester, second trimester, third trimester stuff. Abortion--at any point--was wrong. It was so clear. Painfully clear.” (McCorvey, 1998).

Don Marquis, a professor of philosophy, argues against abortion from an ethical perspective by first establishing the wrongness of killing adults, stating, “… it would seem that what makes killing any adult human being prima facie seriously wrong is the loss of his or her future” (Marquis, in Waller, 2008, Kindle location 8556). He goes on in his explanation of his theory of wrongness to include infants and children:

“… the account of the wrongness of killing defended in this essay does straightforwardly entail that it is prima facie seriously wrong to kill children and infants, for we do presume that they have futures of value.” (Kindle location 8590).

This reasoning leads to his ultimate thesis that the argument for determining rights by personhood (as has been established in current law) is flawed and incomplete (Kindle location 8592). As first quoted, what makes killing wrong is the loss of that individual’s future. If that is true, he argues, then it follows that a child in utero, at whatever stage of development has a valuable future, thereby making the killing thereof “prima facie seriously wrong”.

Consistency
Finally, with all the preceding now established can the question be asked, “Can an honest person hold differing views on abortion and capital punishment?” It seems obvious that one could hold an anti-abortion and anti-death penalty stance without jeopardizing consistency. It might then logically follow that one could hold a similar opinion from the opposite point of view (pro-abortion/pro-death penalty), but it only appears that way. If Marquis’ argument that personhood is moot and that what makes killing wrong is the denial of the future is true, then abortion – in all cases – must therefore be wrong without exception. If that is untrue, then the murder of children or adults could just as easily find justification, given anyone sufficiently intelligent with the stomach for such a macabre line of reasoning.

Therefore, the only seemingly contrary position allowable should be the one of anti-abortion and pro-death penalty. Remember from Pojman that capital punishment is not vengeance but desert. Since the United States’ justice system follows a form of retributivist theory - that “1) all the guilty deserve to be punished; 2) only the guilty deserve to be punished; and 3) the guilty deserve to be punishment in proportion to the severity of their crime” (Pojman, in Waller, 2008, Kindle location 8242) - desert is central to the philosophy. The arguments made by Barret-Lain – that execution is mind-bogglingly expensive – and particularly Bright – that capital punishment is applied in an arbitrary and unjust manner – are issues to be addressed within the system and indict application rather than the form of punishment itself.

References

Anthony, S. (1869, July 4). Untitled editorial. The Revolution, 4(1), 4.

Atkins v. Virginia, 536 U.S. 304 (2002)

Barrett-Lain, C. (2009, May 11). The new case against the death penalty. The Christian Science Monitor. http://www.csmonitor.com/Commentary/Opinion/2009/0511/p09s01-coop.html

Bright, S. (2008). The death penalty should be abolished. In B. Waller, Consider Ethics: Theory, Readings, and Contemporary Issues, 2nd Edition. (Kindle locations 7958 – 8212). New York: Pearson

Coker v. Georgia, 433 U.S. 584 (1977)

Ehrlich, I. (1975). The deterrent effect of capital punishment: A question of life and death. The American Economic Review, 65(3), 397-417.

Enmund v. Florida, 458 U.S. 782 (1982)

Furman v Georgia, 408 U.S. 238 (1972)

Gonzales v Carhart, 550 U.S. 124 (2007)

Gregg v. Georgia, 428 U.S. 153 (1976)

Marquis, D. (2008). Abortion is immoral. In B. Waller, Consider Ethics: Theory, Readings, and Contemporary Issues, 2nd Edition. (Kindle locations 8519 – 8669). New York: Pearson

McCorvey, N. (1998). Roe v McCorvey. Retrieved April 16, 2010, from http://www.leaderu.com/norma/nmtestimony.html

Pojman, L. (2008). The death penalty is sometimes morally legitimate. In B. Waller, Consider Ethics: Theory, Readings, and Contemporary Issues, 2nd Edition. (Kindle locations 8213 – 8458). New York: Pearson

Porter, E. (1994, Summer). Abortion Ethics: Rights and Responsibilities. Hypatia, 9(3), 66-87. Retrieved July 31, 2010, from Research Library. (Document ID: 5846778)

Rice, B. (2006, March 23). Abortion: Ethical analysis. Lifestyle. Retrieved on April 16, 2010 from http://www.associatedcontent.com/article/25347/abortion_ethical_analysis.html

Roe v. Wade, 410 U.S. 113 (1973)

Roper v Simmons, 543 U.S. 551 (2005)

Waller, B. (2008). Consider Ethics: Theory, Readings, and Contemporary Issues, 2nd Edition. New York: Pearson

Wilson, J. (1792). Of the Natural Rights of the Individual. Retrieved April 18, 2010, from the Ashbrook Center for Public Affairs at Ashland University, TeachingAmericanHistory.org Project Web site: http://teachingamericanhistory.org/library/index.asp?document=831