When They Say Abortion and Capital Punishment Are One and the Same

“One cannot help but wonder if this is little more than a tactic adopted by supporters of abortion to seek to discredit pro-life activists by implying that their entire worldview rests on a contradiction.”

On the morning of March 22nd, the Supreme Court of the United States announced that it would review a federal appeals court ruling from July of 2020 that vacated Boston Marathon bomber Dzhokhar Tsarnaev’s death sentence. Writing for the Court last summer, First Circuit of Appeals Judge Ojetta Rogeriee Thompson indicated that concerns about the jury’s impartiality and the potentially underexamined influence of Tsarnaev’s elder brother, Tamerlan Tsarnaev, on his younger brother’s actions warranted the original death sentence being overturned. The announcement at the time was greeted by praise in some quarters and criticism in others, with then-President Donald Trump reacting by writing, “Rarely has anybody deserved the death penalty more than the Boston Bomber, Dzhokhar Tsarnaev.” President Trump further stated plans for his Justice Department to challenge the First Circuit’s ruling: “The Federal Government must again seek the Death Penalty in a do-over of that chapter of the original trial. Our Country cannot let the appellate decision stand. Also, it is ridiculous that this process is taking so long!”

This ruling, along with President Trump’s comments, came just weeks after the federal government began conducting its first executions since 2003. (During President Trump’s tenure, a total of 13 federal executions were carried out.) Now, with the Supreme Court reviewing this case, much of the commentary that surfaced in response to the Trump administration’s resumption of the use of capital punishment will continue to come forward. This also, of course, comes at a time when President Joe Biden has expressed reservations about the use of capital punishment in the United States, marking another dramatic about-face for the President from a position held during his Senate days (and even as recently as 2019). To this point, also on March 22nd, White House Press Secretary Jen Psaki responded to a question about Tsarnaev’s sentence by indicating the President’s “grave concerns” about the death penalty. (This could, very well, be interpreted as the Biden administration suggesting that regardless of a death sentence being reinstated, it will not be scheduling an execution date for Tsarnaev.) 

In any event, debates regarding the moral permissibility of capital punishment remain a constant companion to news cycles such as these. And among the frequent arguments put forward against it—from concerns about alleged racial disparities to questions about its deterrent effects to unease about costs associated with appeals—there is one additional, common contention that, in my view, warrants particular pause and reconsideration. This refers to an argument that is routinely advanced by political commentators, religious figures, and journalists; in brief, it suggests that to be opposed to abortion yet also to support capital punishment is to be guilty of great duplicity—and that to hold such a position betrays a deep-seated insincerity in one’s advocacy on behalf of life. 

To this point, former CNN Newsroom anchor Carol Costello singled out an Oklahoma state legislator in a CNN op-ed for supporting the execution of Clayton Lockett—a defendant who was convicted of repeatedly raping one victim, beating another victim (in the presence of his nine-month-old child), and then burying alive another victim—but also voting for a number of bills to restrict abortion access. (Lockett’s case drew national attention, if one recalls, when he suffered a heart attack while the execution was being halted on account of issues with a new lethal injection drug.) Suggesting that this state legislator was somehow guilty of far-ranging hypocrisy or inconsistency in reasoning for opposing abortion but supporting capital punishment, Costello writes that the state legislator’s position “smacks of hypocrisy” and that “the only nonhypocritical viewpoint, I argued, exists in the Catholic Church…the Catholic Church opposes abortion and the death penalty.” This is a view also shared by Sophia Kleyman, who, writing at The Georgetown Voice, argued that campus pro-life activists were making a mockery of their professed belief in the sanctity of life by demonstrating on behalf of the unborn but not displaying comparable zeal in advocating for the lives of those on death row. 

Although the term “false equivalency” has been badly vitiated by both overuse and misuse, the argument put forward by those such as Costello, Kleyman, and Claiborne seems to meet that descriptor to a tee.

It is also a position concisely summarized by the Christian religious activist Shane Claiborne, when he wrote in January, “This ‘pro-life’ President, and this ‘pro-life’ Supreme Court, just killed more people than we’ve seen in 120 years,” in reference to the 13 people executed by President Trump’s Justice Department. 

In response—and without even wading into the various religious debates regarding the issue— there seems to be compelling reason to reject this point of view. First, in a society such as ours, a great premium is placed on the due process of law, a concept referenced (and enshrined) so frequently, it has become almost cliched to invoke. To this point, unlike a fetus subject to an abortion, which depending on the state, can be permissible for any reason or no reason (depending on how far along the pregnancy is), those sentenced to death undergo a rigorous legal process often dragging on for years on end, with Tsarnaev’s case being a prime example. The deprivation of life in cases such as these is anything but arbitrary or subject to the potentially in flux preferences of a given individual. After all, as Barry Latzer and James N.G. Cauthen write, “Measuring from sentence to execution, it takes more than twelve years to carry out fully reviewed and implemented death sentences in the United States.” And this is not even to mention the innumerable layers of safeguards, such as last minute stays of execution, or the reality that “those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed.”

Secondly—and likely more fundamentally—it seems reasonable that one could argue that to commit certain deeds such as murder (particularly of the more heinous variety, such as in the case of Clayon Lockett) entails a forfeiture of certain rights. Just as few would argue that it is unjust to deprive one of various liberties (such as free movement throughout society) as a consequence of actions such as murder, one might reasonably argue that to commit certain acts entails a forfeiture of life itself. (I will, though, note that critics—in a similar vein to the nonidentity problem—might argue that one must, first, be alive in order to have punishments applied or freedoms curtailed.) As such, if a student group—such as the one at Georgetown—wishes to decry the deaths of those not yet guilty of a single misdeed but not also, in turn, rail against the execution of someone who elaborately planned and carried out a bombing that left three dead and approximately 280 wounded (or another who raped, murdered, and buried someone alive), that appears to be a more than fair-minded position to hold. 

That said, the issue of the moral permissibility of capital punishment continues to be a challenging one. And I, for one, have continued to grapple with the issue, by now largely revising the position I first articulated in a 2013 newspaper column that came out steadfastly against the use of the death penalty in any circumstance. In the time since, I have found myself largely agreeing with then-President Barack Obama’s 2015 comments about the death penalty that, despite reservations, “There are certain crimes that are so beyond the pale that I understand society’s need to express its outrage.” 

But, to be clear, if one wishes to remain critical of capital punishment in all cases, that is certainly a reasonable position to hold. As Costello correctly notes, that is now the position of the Catholic Church: Life is always sacred, and that commitment should not be compromised, no matter the circumstances. However, the position articulated by the Oklahoma state legislator, who drew Costello’s ire, seems reasonable, as well. Although the term “false equivalency” has been badly vitiated by both overuse and misuse, the argument put forward by those such as Costello, Kleyman, and Claiborne seems to meet that descriptor to a tee. In making the case that they do, they advance a legerdemain of sorts that has the consequence—intended or otherwise—of besmirching those advocating sincerely on behalf of the unborn. One cannot help but wonder if this is little more than a tactic adopted by supporters of abortion to seek to discredit pro-life activists by implying that their entire worldview rests on a contradiction. (However, to be clear, in the case of the Georgetown activists and likely countless others, it is not even clear that they support capital punishment; they just perhaps believe its abolition to be a lesser priority than that of abortion.) In closing, it may, indeed, be all the more virtuous to maintain consistency on all matters of life, as the Catholic Church now does. However, to scoff at those who draw a distinction between the deaths of mass murderers and the truly innocent seems truly intellectually disingenuous.

Erich J. Prince is the editor of Merion West.