Not Rhetorical Questions

Tuesday, April 26, 2005

Not Rhetorical Questions

Imagine Jack and Diane are two American kids growin' up in the heartland. While they're holdin' onto 16 as long as they can, Diane becomes pregnant when she lets Jack put his hands between her knees (if you don't think this is possible, you should ask Dr. Frist). Jack and Diane decide that they'd rather not turn into Bruce and Mary, so they agree that Diane should get an abortion. Jack and Diane drive from their rural Indiana hometown to Chicago, where the abortion is performed.

Right after the procedure, the FBI raids the clinic.

Question: Why should Jack go to prison, but Diane not?

Now, to add to the hypothetical: before Jack and Diane drive off, Jack asks Diane whether they should talk to Diane's parents about it. Diane says she doesn't want to wake up her parents from their alcoholic stupor to tell them, as they have a tendency to beat the living crap out of her when they're drunk. This seems like sound reasoning to Jack. At the clinic, Diane tells the doctor about the abuse, and he has her write down the details, then calls the Indiana State Bureau of Family Protection and Preservation to report it before performing the abortion.

Question: Why should Jack go to prison, but the doctor not?

Now, suppose the doctor performs the abortion before calling the Hoosier family cops.

Question: Why should doing things in this order (but not the other way around) expose the doctor not only to a prison term and a $100,000 fine but also to a civil suit by Diane's parents once they've sobered up?

If you'd like answers to these questions, contact one of the many co-sponsors of the "Child Interstate Abortion Notification Act," H.R. 748.

I say these questions are not rhetorical because I am honestly interested in the rationale for these features of the bill (assuming there is a rationale, and it's not just poor drafting). That is, let's assume that we want to criminalize transporting minors across state lines to receive abortions without notifying their parents, as well as performing abortions under those circumstances. Why would we want to let doctors off the hook if the girl has been abused, but not do the same for the boyfriend, grandparent, friend, rabbi, etc. who does the driving or buys the bus ticket? Similarly, I can see why you'd still want to nail the 35-year-old who got the girl pregnant and then drove her to the clinic even if the girl herself weren't prosecuted; but when the girl and the guy sit next to each other in homeroom, is it reasonable to criminalize his behavior but not hers (note that the same question applies to some states' statutory rape laws, an asymmetry that the Supreme Court has upheld against an Equal Protection challenge)?

I've looked quickly through the lengthy House Judiciary Committee report on the bill (pdf), and I don't think these questions are answered. The committee majority says the bill protects girls from abuse, citing the exception that protects physicians in cases of abuse, but I don't think it comments on the absence of a similar exception in the transportation component of the bill.

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