Contemporary “pro-life” discourse often emphasizes—and rightly so—the goal of ending legal abortion. My criticism of much of it, however, is that it is blindly optimistic. It is fraught with rhetoric about justice for the innocent (and their mothers), but largely fails to examine the legal and socioeconomic fallout of such a momentous shift in public policy. My intent is to bring that fallout to the forefront.
I wish first to address the contention that legal prohibition should not be the aim of the anti-abortion movement—a contention with which I heartily disagree. The primary purpose of government (arguably, its only purpose) is to preserve the essential liberties of the populace, namely life and property. Theft is illegal, for example, because stealing from someone deprives him of his property. Homicide is illegal because it deprives him of his life. When an act violates these most basic freedoms, there can be no moral justification for keeping it legal.
Abortion opponents recognize the fetus as worthy of these freedoms by virtue of its biological humanity. It is thus inconsistent for self-professed “pro-lifers” to resist a formal ban on abortion. Doing so would amount to being “personally opposed,” or, in other words, “pro-choice.”
I don’t mean to suggest that we should push for full, immediate prohibition. I favor an incremental approach myself. What I do mean—and I stand by these words—is that those who call themselves “pro-life” should, on account of the same principles that lead them to conclude that abortion is unethical, wish to see the unborn protected under the law at some point in the future. In the absence of such an objective, they are lending their tacit approval to the practice of abortion among those who choose it.
Be advised that the purpose of this essay is not to prescribe any particular course of action—only to encourage the reader to consider the ramifications of a formal abortion ban. You will note that its subtitle is “the hard questions,” not “an answer to the hard questions.” I offer suggestions where appropriate, and cover alternatives where applicable; but the ultimate course of policy will be determined by the public and the legislature at that unspecified point in the future (which you and I may or may not live to see).
The first and most obvious problem is the question of legal penalties. While we can reasonably expect a drop in the abortion rate if Roe v. Wade is overturned, it is naive to suppose that making abortion illegal will completely eliminate it. I have outlined, above, why “pro-lifers” should support a law banning abortion; whether illicit abortions should be punished, therefore, is not the issue, since a law that is not enforced is a meaningless law. Rather, the issue is how. If our intent is to ban abortion, then the matter of managing offenders—both those who seek and those who provide unlawful abortions—becomes unavoidable.
Some favor leniency toward the seeker, citing financial desperation, domestic abuse, and various other factors that might drive a woman to illegal abortion. These people generally press for light or no penalties for the would-be mother and stricter penalties for the abortionist—similar to the “Nordic model” of regulating prostitution in which only the customer, not the prostitute, faces criminal charges. Others insist that desperation is not a sufficient excuse for breaking the law: that the woman pursuing illegal abortion is fully cognizant of her actions, and that both patient and provider should be tried accordingly. I tend to agree with the latter camp, personally.
Moreover, anyone who advocates for the criminalization of abortion must consider the nature of the charge to be administered: should feticide be treated the same as premeditated killing of born persons (i.e., as murder), or as some lesser offense? If the latter is acceptable, it follows that the fetus has less value than the born person—which, by some standards, is true. A born person has what we might call a “social identity” (not to be confused with the social-psychological theory of the same name): he has ambitions, achievements, and relationships, all of which, if he is killed, are destroyed with him. A fetus, on the other hand, has no such identity. Its body is the only casualty of abortion.
Any ambitions, achievements, or relationships the fetus might have in the future are potentials, by definition; for the born person, they already exist. Even an infant satisfies at least one of the criteria for a social identity—it is valued by (i.e., has a relationship with) its caregivers. This does not, however, mean feticide is morally justifiable. A lack of social identity does not equate to a lack of humanity, by which I mean the condition of being genetically human.
To rephrase my original question, then: is the charge of murder—which is punishable by life in prison—appropriate for those guilty of feticide, or should it be reserved for the killers of born persons (i.e., those with a social identity)? If a murder charge is excessive, how should abortion be punished instead? Should the severity of punishment increase with gestational age?
A second concern is the prevention of unwanted pregnancy. If abortion ceases to be a legally available recourse, individuals will have a greater incentive to avoid pregnancy, either through abstinence from sexual activity or through proper and consistent use of contraceptives. There is a vocal faction of anti-abortionists, comprised largely of devout Christians, that opposes artificial contraception on the grounds that it separates sex from its natural purpose: these, I expect, will object to the latter method. But just as it is naive to suppose that all abortions will end once abortion is outlawed, so it is naive to suppose that outlawing abortion will end all non-procreative sex. Opponents of legal abortion should therefore embrace comprehensive sexual education and ready access to contraceptives, even if they do not approve of it themselves.
It is worth emphasizing that comprehensive sexual education, as its name suggests, does not discourage abstinence: it merely offers additional options for those who choose not to practice it. It is also worth emphasizing that most forms of contraception are highly effective when utilized correctly. In a society without legal abortion, thorough knowledge of proper contraceptive use is an imperative.
What is meant by “ready access to contraceptives” is up for debate. Those on the Left tend to back government measures for providing low-cost birth control, including the Patient Protection and Affordable Care Act’s controversial “contraceptive mandate,” under which employers are required to include coverage for birth control in their health insurance plans. Conservatives, meanwhile, generally hold that family planning is the responsibility of the individual, and that the individual—not her employer, and not any federally-funded agency like Planned Parenthood—should foot the bill. If the individual is unable to afford it, private organizations (similar in function to Planned Parenthood but for the obvious) are a possible solution. Making oral contraceptives available over the counter is another, but as Reason magazine’s Elizabeth Nolan Brown notes:
Even with improved access to family planning services, human error is to be expected. There will always be some unplanned pregnancies, which, if abortion is off the table, means more children born into less-than-ideal circumstances. Further, if the only options are adoption and parenthood, we can anticipate a rise in adoption placements. I base this prediction on the assumption that comparable proportions of pregnant women will, for whatever reason, elect not to parent. Of these, those who might have chosen abortion under current law would, in a hypothetical post-Roe society, have no other legal choice but adoption.
At present, the domestic adoption process in the United States is fairly expensive—and mired in red tape. In 2012-2013, the average cost for a newborn adoption through a private attorney was approximately $34,000; adoption agencies charge nearly $6,000 more.(2) Adopting a child from the foster system is significantly cheaper—at under $3,000 on average—but extensive regulations discourage most would-be parents.(3) One study found that, for every 1,000 individuals who take the first steps toward adopting a foster child, only 36 actual adoptions take place.(4)
Adoptive parents are required to complete (and pay for) a “home study,” which entails a background check, a thorough home inspection, parenting classes, and multiple interviews with a social worker. They are also responsible for legal fees and, in many cases, the cost of counseling for the child’s biological family. For agency-facilitated adoptions, the application fee itself is close to $17,000!(5) Eliminating unnecessary regulations would drastically lower the cost of private adoptions and simplify the process of adopting from foster care, making adoption a more attractive option for both parties.
And what about the women who opt for parenthood? According to the Guttmacher Institute, three-fourths of women who seek abortion “say that having a baby would interfere with work, school or the ability to care for dependents.”(6) Clearly, the lack of tangible resources for working or student mothers is a problem. Removing access to abortion without addressing its antecedents is inexcusable.
Pregnant and parenting college students would benefit from on-campus daycare, diaper changing stations, and maternity housing—none of which are currently the norm. Funding for these services could be drawn either from tuition or from private donations. Scholarships for parenting students provide additional motivation for young mothers to stay in school. Implementing “family-friendly” workplace policies would lessen the burden on pregnant employees who feel pressured to choose between child and career; Feminists for Life offers a comprehensive checklist of these, including dependent care coverage, telecommuting options, and generous family leave.(7)
The Guttmacher report also lists inability to afford a child (roughly 75% of respondents) and relationship troubles (roughly 50%) as common reasons for seeking abortion.(8) Without legal abortion, this translates into a higher incidence of poverty and domestic abuse—if appropriate precautions are not taken. Once again, what constitutes “appropriate precautions” varies along the political spectrum. Progressives are likely to endorse solutions in the form of welfare expansion and other taxpayer-funded social programs, whereas conservatives usually encourage private charity.
In Chicago, where I live, I volunteer at a nonprofit that offers long-term housing to single mothers with demonstrable need. During their stay, residents are equipped with the practical skills they need to achieve self-sufficiency after they leave. Staff provide on-site parenting and financial literacy classes, and partnerships with local businesses help the women secure gainful employment. Unfortunately, the demand far outweighs the facility’s capacity. Establishing similar programs across the country is one way to lessen the burden of at-risk women who choose to raise their children.
Currently, roughly one-fifth of U. S. pregnancies are aborted.(9) Assuming, for the purpose of argument, that the incidence of unintended pregnancy does not change, we can expect up to 25% more births once abortion is no longer avail