Abortion, the death penalty, and selective prosecution.

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Sept. 20 2010 7:53 AM

Punitive Dissonance

Abortion, the death penalty, and selective prosecution.

Bob McDonnell. Click image to expand.
Virginia Gov. Bob McDonnell 

Three days from today, Virginia will execute Teresa Lewis for the murders of her husband and stepson. Gov. Bob McDonnell rejected her clemency plea on Friday. Although Lewis didn't pull the trigger, the governor observed, she "paid for the firearms" and "intentionally left a rear door to their home unlocked" so that her co-conspirators could commit the murders. For this, she will die.

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

Like other conservatives, McDonnell believes that the taking of human life, even by proxy, must be gravely punished. And like other abortion opponents, he claims that the right to life "applies to every American—born and unborn." Yet every day, thousands of women do to their fetuses what Lewis did to her stepson. They pay to get rid of an unwanted life, and they provide access to the victim. What punishment does McDonnell propose for these women? Absolutely nothing.

Seven years ago, as a delegate to Virginia's General Assembly, McDonnell introduced legislation to outlaw partial-birth abortions. The bill's first paragraph declared: "Any person who deliberately and intentionally performs a partial birth abortion or a dilation and extraction abortion is guilty of a Class 4 felony." But its fifth paragraph stipulated: "A woman upon whom [the abortion] is performed shall not be prosecuted under this section for a conspiracy to violate this section or for any other offense arising out of the performance of such procedure."

In committee, McDonnell merged his bill with a second bill, changing the name of the offense from abortion to infanticide. "Any person who knowingly performs partial birth infanticide and thereby kills a human infant is guilty of a Class 4 felony," said the revised legislation. But again, it added: "A woman upon whom [the procedure] is performed may not be prosecuted for any criminal offensearising out of the performance of such procedure."

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In April 2003, that bill became Virginia law. The law prohibits "partial birth infanticide" and holds the doctor responsible for a Class 4 felony. But it includes the same caveat: "The mother may not be prosecuted for any criminal offense based on the performance of any act or procedure by a physician in violation of this section."

In 2006, McDonnell became the state's attorney general. He vigorously defended the law in court, eventually prevailing in the U.S. Court of Appeals for the 4th Circuit. Today, if a woman in Virginia hires a doctor to commit what the state calls "infanticide," the doctor is subject to a prison term of two to 10 years. But the woman walks.

The standard pro-life rationale for not prosecuting women in these cases is that women don't understand what's being done to their babies. But McDonnell has worked hard to make sure that they do understand. Nine years ago, he introduced legislation stipulating that 24 hours before an abortion, the doctor must offer the woman "printed materials" depicting the fetus, its "physiological characteristics," and "the methods of abortion procedures commonly employed." Those rules were enacted in 2001 and have been Virginia law ever since. Even if a woman refuses the materials, the law requires the doctor to tell her the "gestational age of the fetus" and to offer "further information concerning the procedures" that will be used.

Supporters of Teresa Lewis tried to persuade McDonnell that she, too, didn't fully understand what she was doing. They noted that she's "just above the line of mental retardation" and argued that during the crime she "was numbed by the medications she was taking." Yet she got the death penalty while the triggermen got life—exactly the opposite of McDonnell's abortion law, which punishes the forceps-wielder but not the client.

McDonnell is unmoved. He holds Lewis fully responsible because she bought the guns, left her door unlocked, and doesn't meet the "statutory definition of mentally retarded." Had she paid for an "infanticide" and positioned her body to facilitate it, he would have given her a pass.

Why the discrepancy? The answer is obvious: Like other pro-lifers, McDonnell doesn't really believe that fetuses have the same right to life as the rest of us. If he did, he'd hold women responsible for contract hits on their fetuses. Instead, he forbids prosecution of these women and insults our intelligence by calling their non-prosecutable offenses "infanticide." Any legislator, attorney general, or governor who prohibited prosecution of infanticide procurers would promptly be thrown out of office. But in the context of abortion, politicians do this routinely. And pro-lifers applaud them.

If you seriously believe that killing a late-term fetus is infanticide, you should be outraged at the legal immunity guaranteed to purchasers of this crime under "pro-life" legislation. But regardless of your views on abortion, Virginia's double standard is plainly unjust. A state can't criminalize late-term abortion as infanticide, systematically prosecute the doctor but not the woman, and then execute a woman but not her triggermen for an arranged murder. It doesn't add up.

Ordinarily, this kind of inconsistency can be addressed in the course of time. But Lewis has no time. Is killing by proxy a noncrime or a capital offense? Gov. McDonnell, you have three days to sort this out.

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    (For complete coverage of the Lewis case, see these articles by Frank Green of the Richmond Times Dispatch, Laurence Hammack of the Roanoke Times, Dena Potter of the Associated Press, and Maria Glod of the Washington Post.) Like Slate on Facebook. Follow us on  Twitter. William Saletan's latest short takes on the news, via Twitter:

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