Nobody involved would go to jail, he said, as "it is possible to believe that abortion is murder and also believe it is a completely unique form of murder. Abortion would be, you know, if you have first-degree murder, second and third degree...it's like seventh-degree murder or something."
Kevin Drum calls this "about as good an excuse for not jailing abortionists as I've heard." Maybe, but that still doesn't make it very good.
First of all, it's worth noting that once you get beyond second-degree murder, for the most part (not everywhere), we stop calling the act "murder" and begin giving it other names. Like "voluntary" or "involuntary manslaughter". Below that, there's "negligent homicide". And all of these ever-lower degrees of "murder" still carry with them prison sentences.
Second, it's worth exploring why we have various degrees of homicide charges at all. Generally, it has to do with the state of mind of the perpetrator. We punish people who intend to kill more than those whose act was unintentional but reckless, which in turn carries more punishment than the person whose state of mind was merely negligent. We also provide some diminution when the actor's consciousness is blurred, due to some sort of provocation or temporary insanity, as well as outright acquittal where the action was justified (self-defense) or excusable (insanity).
What is unclear is why, if abortion is a species of murder, it falls under any of the exceptions that typically counsel even a reduced sentence (let alone an outright excuse). It's clearly premeditated. There is no immediate provocation. There isn't a self-defense claim (Douthat grants a life-exemption for abortion). The best argument I've heard, and I use the descriptor loosely, is one based off the idea that women are being per se irrational when they seek an abortion -- in other words, flat misogyny. We could say that abortion is entirely of its own kind, but that raises the question of why, if abortion rests so uncomfortably with our widely established and agreed upon intuitions of what murder means, it be considered a relative of murder at all? Either you buy into the framework or you don't -- you don't get to borrow the normative punch of the term "murder" without actually having to live with the consequences of labeling something that way.