the physician for prosecution and

punishment, closing their eyes to the

THOMAS SZASZ tion is the killing of a human being or
"person," then it is surely the quintes-
sence of first degree murder. What
"murder" is more deliberately planned
and executed than abortion? Further-
more, if abortion is murder, then its
The abortionist chief architect and beneficiary is clearly
the pregnant woman, the abortionist
as fall guy playing merely the role· of an ac-
complice. (The eminently possible de-
complicity of the "patient" in the pro-
hibited act. Therein lies the inconsis-
tency of the antiabortionist: They ad-
vocate, and propose that the country
reembrace, laws that define abortion as
a crime and that treat the abortionist as
the only "criminal" in the case.
The Waddill case illustrates the ab-
surdities into which our inattention to
such considerations have led us. The
facts are as follows. In February 1977,
Mary Weaver, an 18-year-old preg-
nant, unwed high-school senior, sought
an abortion at the Huntington Beach
Free Clinic. Her request was denied
because she was judged to be 28 weeks

T HE RECENT
Dr. William Waddill,
TRIAL
the
California obstetrician accused
of strangling the supposedly live baby
OF
velopment of an effective chemical
abortifacient, which the pregnant
woman could administer to herself,
would make him superfluous.) Accord-
pregnant. Ms. Weaver and her father,
the principal of the high school she at-
tended, then turned for help to Dr.
William Waddill, an associate of her
ingly, criminal laws against abortion family doctor. Ms. Weaver told Dr.
he delivered in the course of a saline penalizing the abortionist but not his Waddill that she was 20 -to 22 weeks
abortion, has helped once more to client are as absurd and immoral as pregnant. Her father also asked Dr.
dramatize the dilemmas of abortion. would be criminal laws against Waddill to abort the baby. On March 2,
The contemporary arguments for and premeditated murder penalizing hired 1977, Dr. Waddill did a saline abortion
against abortion have been articulated assassins but not those who hire them. as a result of which Ms. Weaver deliv-
ad nauseum. I shall not rehash them. Yet all modern antiabortion laws are ered a baby judged to be 31 weeks old.
Instead, I shall focus upon a very prac- precisely of this type: They single out The rest of the facts are disputed.
tical aspect of the abortion controversy
that is persistently ignored in contem-
porary considerations of the problem.
This glaring omission reveals a grave
inconsistency on the part of the anti-
abortionists, rendering their moral po-
sition untenable.
The question of when the fetus be-
comes a "person" -at the moment of
fertilization, at the time of quickening,
after 28 weeks of gestation, at the time
of delivery, or at some other point-is a
matter on which biologists and ethicists
may and do have honest differences of
opinion. Regardless of such differences,
however, I submit that abortion is al-
ways, and necessarily, an act of killing.
The question, therefore, is: What sort of
killing is it? Justifiable or not? If abor-
tion is justifiable killing, as it is now
considered to be (until an ambiguously
late stage of pregnancy), then, of course,
it falls outside the purview of the crimi-
nal law.
However, the antiabortionists assert
that abortion is a species of unjustified
killing that should therefore be prohib-
ited and punished by the criminal law.
If that is the basic premise on which
their position rests, then that position is
untenable. The reason is this. If abor-

THOMAS SZASZ, a contributingeditor, writes

a monthf:Jcolumnfor INQUIRY.His most recent
book is The Myth of Psychotherapy.
4

j U L Y 2 4, I 9 7 8
Some witnesses claim that the baby had One might of course argue, with Oliver
a heartbeat and was breathing, and Wendell Holmes, that "The life of the
that Dr. Waddill strangled it. Dr. Wad- law has not been logic; it has been expe-
dill claims that the baby was born dead. rience." Unfortunately, that has been
Dr. Waddill was indicted for murder. all too true. But can we, as members of
In May 1978, his three-month trial a free society, afford even to debate a
ended with a deadlocked jury and a law whose life is the brazen illogic of
mistrial. (OnJune 2, a California judge punishing the accomplices to a crime,
ordered that Dr. Waddill be retried, the but not the masterminds who plan, CHRISTOPHER H. PYLE
new trial to begin November 27.) Ms. contract for, and chiefly benefit from it?
Weaver was never charged with any The antiabortionists are irrefutably
crime whatsoever. In fact, she is suing right in asserting that the fetus is alive,
Dr. Waddill (and the hospital where the that pregnancy is not a disease, and
abortion was performed) for the modest that abortion is not a treatment. An
sum of $17 million, charging "negli-
gence, assault and battery, and wrong-
abortion is the fulfillment of a con-
tract-between a pregnant woman and
Gutting
ful death." an abortionist-for killing a fetus. The the Fourth
H contract originates with the "patient"
ERE IS EPITOMIZED THE and is executed by the physician. In
hitherto repressed dimension earlier times, women who deliberately
Amendment
of abortion. Clearly, Ms. aborted their babies were prosecuted
Weaver is the moral agent primarily and punished. However, by the end of
responsible for her abortion. Dr. Wad- the eighteenth century, laws decreeing
dill performed the service for which he the punishment of such women, like
A FTER YEARS OF DEBATE,
Congress is about to enact a law
to curb the wiretapping and
and Ms. Weaver had contracted, but is laws decreeing the punishment of bugging abuses of American intelli-
nevertheless sued by her. Inasmuch as suicides, were no longer enforced. gence agencies. The Foreign Intelli-
Ms. Weaver had sought out Dr. Wad- American antiabortion laws were al- gence Surveillance Act of 1978, which
dill to enlist his aid in killing the fetus ways aimed against the "illegal abor- swept through the Senate 95-1, is
and is now suing him partly for having tionist," not against the woman who scheduled for a House vote in July and
deprived her ofa live baby, her chances sought his services.* seems almost certain to become law be-
of winning her suit are probably quite No one would deny that the moral fore Congress adjourns.
good. I say that because there is a prec- agent motivating the act of abortion is In some respects the bill is a distinct
edent now for settling medical tort-liti- the pregnant woman. If that act is improvement over existing "law," and
gation on such Alice-in-Wonderland deemed unjustified and is declared il- it may well be the strongest legislation
principles of fairness and contract. legal, then it follows that the main cul- civil libertarians are likely to get.
This precedent is the much-publi- prit is the pregnant woman. At the Constitutionally, however, it is an
cized case of Mr. Kenneth Donaldson. same time, it is abundantly clear that abomination.
Donaldson, it should be recalled, was most people in modern Western soci- As the bill stands now, all parties to
confined as an involuntary mental pa- eties-even those passionately opposed its negotiation-the executive branch,
tient. Claiming to be a Christian Scien- to abortion-are unwilling to punish Congress, and civil libertariangroups-
tist, he asked his physicians to refrain the person most responsible for it. I have won substantial victories. How-
from treating him with electroshock submit, therefore, that until such time ever, it is the intelligence agencies that
and drugs. The physici.ans honored his as the American people are willing to have scored the greatest triumph. No
request. After Donaldson managed to have the state prosecute and punish longer will they have to lie about their
obtain his release, he sued the hospital women who have, with premeditation, electronic snooping or make outra-
director for depriving him of his "right contracted for the violation of antiabor- geous claims of"inherent power." The
to treatment" -and, with the help of tion laws, such laws will continue to measure before the House would
the American Civil Liberties Union, diminish rather than increase the legitimize most of the eavesdropping
won an out-of-court settlement. In my human dignity which proabortionists they have felt compelled to conceal for
critique of this case in PsychiatricSlavery, and antiabortionists alike supposedly more than 40 years.
I compared Donaldson's legal posture cherish. [Ji Civil libertarians, who were led in
to "that of a Catholic woman who re- the fight over this legislation by the
fuses an abortion and then sues the doc- *Thehistoryof thestatus ofabortionin Catholic ACLU and the Center for National Se-
theologyand ofthe sanctionsagainst it in ecclesiastic curity Studies, have some grounds for
tors" for not aborting the fetus. In the law is exceedingl,y
complex.The act was most severel,y
Weaver case, the same argument is punishedby the bull Effraenatam of PopeSixtus v, satisfaction. Henceforth, all wiretaps
turned around 180 degrees: a woman issuedon October29, 1588. It decreedthat all abortion and bugs for intelligence purposes
requests an abortion and then sues for be treatedas murder,and it explicitlyincludedthe within the United States must be au-
not having been delivered of a live pregnantwomanas a party sharingfully in theguiltfor thorized by a judge. Where "U.S. per-
'the act. However,few womenguilty ofabortionwereso sons" (citizens and resident aliens) are
infant. treated.The effort to controlabortionby meansef the
Kenneth Donaldson's and Mary criminallaw beganonly in the nineteenthcentury.In prospective targets, mere curiosity no
Weaver's suits are, of course, but two of practice,antiabortionlaws, like the antiprostitutionand longer will be enough. The government
the "symptoms" of the moral malig- antialcohollaws thatfollowed them, singledout the will have to persuade a judge that it has
sellersfor prosecutionandpunishment,treatingthe
nancy endemic to our age-that is, our buyersas if they werethe innocent"uictims" efan
CHRISTOPHER H. PYLEteachesconstitutionallaw
refusal to treat patients and physicians irresistibletemptationto purchasean overwhelming[y and civil libertiesat Mount Holyoke College.
as equal!J responsible moral agents. desirable,albeitforbidden,serviceorproduct. 5

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