The Pragmatics of (Theoretical) Abortion Law

As the topic of abortion has become taboo and as the respective sides have hunkered into their corners, the issue seem to be broached less and less. Either you think life begins at conception, or you don't. Either you think a mother's "right to do what she wants with her body" trumps a fetus' right to live or you don't. Of course, framing the issue this way exposes my bias, and it isn't completely true as there are gradations of disagreements that go beyond these dichotomies, but the point is that meaningful discussion across the Pro-life / Pro-choice divide happens rarely.

But what about meaningful discussion within the spectrum of those views? That is, discussion about the topic of abortion and its implications among Pro-lifers, or among Pro-choicers, internally.

On the Pro-choice side of things the focus always appears to be solely, or at least primarily, on preventing anyone or anything from pushing back against "a woman's right to choose". In practical terms, this is all they are concerned with. And so the discussion among themselves tends to revolve around this singular objective. They may also have discussions about practical means of reducing the number of unwanted pregnancies, and therefore reducing the number of abortions, but this seems to be only tangentially related to the issue of abortions. Reducing the number of unwanted pregnancies is something anyone can advocate, whatever they think of abortion.

On the Pro-life side of things, just by the nature of the case, the discussion is much more diverse and varied. From a policy perspective, if you do aim to make abortion illegal, it potentially leads to many other pragmatic questions that must be addressed. While if you aim to keep it legal at the federal level, there is only one real question that needs to be addressed, which is how best to defend the current legal status quo.

In a recent guided discussion with some Christian friends, who seemed to be fairly Pro-life, the topic brought up many practical concerns about the theoretical criminalization of abortion. If we were really to achieve this, by overturning Roe v. Wade, returning the issue to the states and having some states, inevitably, make it illegal, what would that look like? How would it work? How would it be enforced? Would there be exceptions?

These are issues that opponents of legal abortion must consider that proponents don't have to. [1]

The first question the group asked about criminalization of abortion is whether we, as proponents, were prepared to arrest and jail young women for the crime of abortion. While this issue was raised by the group I think it's mostly easily dismissed. Criminalization would have to include means of enforcing the law, but obviously the primary means would not be arresting or jailing individual perpetrators (though any legislation outlawing abortion would likely include this as one tool of enforcement), but by outlawing abortion clinics and enforcing the law on the physician's end. Policing illegal, back-alley abortions would be difficult. Unless, say, a husband or boyfriend pressed charges against a wife -- something which would itself be rare -- the illegal abortions that did happen would be very difficult to do anything about.

As for whether we would be prepared to advocate long prison sentences for the to-be criminals, in those rare instances where they are caught red-handed or where charges are pressed against them, I have no qualms about that whatsoever. Though others in the group did, I didn't understand their hesitance. I believe that the empathy they feel for someone who may be in a desperate situation causes some to question the logic of criminalization, yet we don't seem to feel quite the same empathy for thieves in desperate situations. Or at least, if we do feel that empathy, we're sensible enough not to allow it to mitigate against the logic of having laws against theft and enforcing them.

A related concern arises: will criminalization be effective in decreasing the number of abortions that happen? Will it just make back-alley abortions, which are much more dangerous, skyrocket?

If Roe ever was overturned, the issue would be sent back to the states. Some would make it illegal and others would not. It's almost certain that within those states where it was made illegal rates of abortion would plummet. With abortion clinics gone, and it being illegal for physicians in those states to perform the procedure, very few doctors would risk performing abortive procedures in illicit ways, as the risk would be too great for them. Similarly, the widespread knowledge about the risk of homemade abortions would prevent from those up-ticking too sharply.

The most likely scenario is that interstate travel to get an abortion in a state where it is legal would become frequent. Or, if the proponents of criminalizing abortion had it their way, international travel would be required, after every state made abortion illegal as well. In which case those seeking a place to have a legal abortion would most likely go to Canada (seeing as Mexico is heading along an anti-abortion path of its own). Of course, this would take decades to happen, if it were to happen at all. But this is what proponents want, whether or not it's immediately realistic isn't the issue. We must think through all the implications of our advocacy.

And what would the practical results of all 50 states making abortion illegal? It's impossible to say conclusively, but if you look at it in terms of the cost-benefit analysis for having an abortion, the cost to have one -- international travel fare, time, jail time, or significant increased risk to a woman's own health -- will have gone up immensely, while the "benefit" will have stayed the same. Since people tend to behave in self-interested ways, it's difficult to imagine abortions doing anything but dropping off significantly in that scenario.

During the interval when it's illegal in some states, but legal in others, the cost side of the cost-benefit equation within those states where it's illegal will also have gone up, though not as dramatically. The cost now includes the cost of interstate travel, but that's all. Still, that's enough of a hassle for enough people that the number of abortions occurring in the nation would still likely decrease immediately, though perhaps not drastically.

Another pragmatic issue that arose in the discussion was whether it would be easier for a rich person to get around the laws -- by travelling to neighboring states, or somehow procuring a black market abortion -- than a poor person. The implication seemed to be that if it was -- and obviously it is -- this should somehow play into our consideration of whether or not to make it illegal. On this point I just don't follow the logic. Virtually all criminal activity is more prevalent among the poor than the rich, yet we don't use this fact as a reason not to criminalize theft or assault. One might point out at this juncture that when the rich do do those things, they have a much better chance at getting acquitted of the charges. Is this an argument not to criminalize them? Of course not. It's not an argument of any kind, it's an emotional, guilt-based appeal.

Some would claim that the poor just commit the kind of criminal acts that are easier to "see", and therefore prosecute, than the rich, whose criminal acts are just better hidden. This is a theory that can't truly be tested, and therefore refuted -- there are no statistics on the crimes that we have no record of which might be happening, by poor or rich people -- but there's very good reason to doubt the validity of this hypothesis. Mostly by applying the same cost-benefit analysis to the incentive to do crime. People who are already rich have much less incentive to do anything illegal, as they risk what they already have, where poor people often have little or nothing to lose. None of which is to insinuate that its the inherent moral character of the poor that is at issue -- it's not -- or that corporate crime doesn't happen -- it does -- but it's about what poverty inherently means, and what its effects on people in a nation of laws are and should be.

This argument could require a book of its own so I'll stop short here, but my point, which should be uncontroversial, is that whatever you think about how much crime the poor commit compared to the rich, and the reasons behind it, the effects the theoretical anti-abortion laws will likely have on the economically disadvantaged should play no role in our decision whether or not to criminalize the behavior.

One final issue that came up that I'll discuss here is the question of, if you decide to criminalize abortion, whether or not there would be exceptions in cases like when the life of the mother is at risk, or perhaps in cases of rape or incest. This would be up to the state legislatures and how they choose to write their laws, but there's nothing preventing a state from including exceptions. Our murder laws have exceptions for self-defense and insanity, so why would our abortion laws not be able to have exceptions? Choosing what exceptions to allow and which to not might be a difficult task, but the question of exceptions doesn't fundamentally address the question of whether we ought to criminalize abortion at all.

Our discussion brought up many other issues as well, but these were the ones that cut to the heart of the issue for me, which is the legal question. Should abortion be made illegal, and if so, are there any practical, pragmatic concerns which would mitigate against criminalizing it? For me, the answer is a resounding "no."

--------------

[1] - Or at least proponents hope they never will have to, and they prefer to focus on defending the status quo, for the time being.