I have come to accept that there are many thoughtful, intelligent people who firmly believe — as I do not — that abortion is murder. I further accept that there is no moral or philosophical argument I can offer that will convince them otherwise.
I would, however, like to offer some practical arguments, which I have not yet seen thought through, or even brought up. If we end up, as we might, in a situation where Roe v. Wade is overturned, what would an actual ban on abortion look like? What would be the challenges to implementing such a ban? How does one go about making government responsible for policing women’s bodies?
Because if Roe is overturned, what we certainly will not see is an overarching federal ban — no foreseeable Congress would even consider it. So it will fall to each state to create its own abortion laws. Inevitably, some states will ban abortion altogether.
But a ban at the state level will most likely require an expansion of state government to accommodate what will surely be a dramatic increase in criminal activity. These states will need more police, more courts, and more prisons. Strapped state budgets will need to adjust.
Because laws do not stop abortions. They reduce access. They encourage dangerous workarounds. They turn ordinary citizens into criminals. But even in countries like Honduras — where any abortion, for any reason, is an aggressively-enforced crime — an estimated 80,000 women per year still manage to end unwanted pregnancies. Despite hair-raising risks.
So regardless of how strict the enforcement, let’s stipulate that the demand for abortion will continue to be brisk, even as the supply becomes illegal.
This is a movie we’ve seen many times. Just as in Prohibition, just as in the “War on Drugs,” the supply of an illicit product will always rise to meet the demand. This creates new kinds of criminals at every point in the supply chain, and society will need to decide how much enforcement it wants. But you can’t have an effective ban without bringing criminals to justice. What’s a crime without punishment?
So with all this in mind, here are some serious questions for those who would ban abortion outright:
Do you believe abortion is first-degree murder? Since premeditation is a given, should a conviction carry the same punishment as other first-degree murders, i.e. life imprisonment or the death penalty? If it’s not first-degree murder, then what is it? Will murder of the unborn carry more or less punishment than murder of the born?
Do you support taxpayer dollars allocated to the enforcement of abortion laws? If your state needs to raise income or sales taxes to pay for it, would you support that? Would you divert money from other areas of state government? Would you move resources from, say, the state’s Covid response to pursue abortion suspects?
Would you earmark state funding for policing and prosecution? Will police be trained in forensic gynecology? Will interrogation rooms be retrofitted with gynecological equipment? Will a uterus be considered a crime scene? Will an officer need a warrant to inspect such a crime scene?
Would you expand the judicial system to accommodate large numbers of new cases? Would you hire more judges and support staff? Would you put more public defenders on the payroll? Would you build more courtrooms?
What evidentiary standards would you establish? Can a suspect be held in custody because her uterus holds evidence of a crime? Would a judge — or a prosecutor — be able to order surgery to find evidence of a suspected abortion?
Would you expand the prison system to take on expected offenders? As convicted murderers, would they join the general prison population with other murderers? Or would they be a separate class of prisoner?
If a single mother is convicted and imprisoned, will the state take responsibility for her other children? Should the state commit to maintaining those children for the duration of her sentence? If not, how do you propose to take care of them?
As abortion pills become increasingly available and legal worldwide, how would you restrict access? Since most pills will be ordered online — mostly from states where it’s legal — how will you cut off that supply?
Would simple possession of abortion pills be a crime, or would they need to be ingested first? Will the seller of the pill be as liable as the buyer? Which is the greater crime — selling the pills or using them?
How would you handle the influx of unwanted babies who will surely be given up for adoption? Will they become wards of the state? Will adoption services be ramped up to accommodate them? Will orphanages make a comeback? Is the state, or any other entity, prepared to provide long-term care for a significant number of parentless children?
I understand that I am applying rational standards to an emotional issue. But in this case, the emotional issue has huge practical consequences. Because if you truly believe in the criminalization of abortion as a societal imperative, then you must be prepared to administer its enforcement.
But the long, sordid history of black markets would argue against the success of imposing another layer of government control over personal behavior.
So especially for those who purport to want less government in people’s lives, is a ban on abortion really worth it?