How to Regulate Abortion

By Kevin D. Williamson

Thursday, May 05, 2022

 

The desire to punish is distinct from the desire to protect — it is rooted in an entirely different psychology and it produces very different policy prescriptions. If, as seems likely, Roe v. Wade is vacated and the matter of abortion regulation is properly returned to the state legislatures, we should be mindful of that difference and emphasize protection over punishment when crafting our statutes.

 

There are, of course, many statutes already on the books or drawn up and waiting to go into effect if and when Roe is repealed. But these are likely to change over time as our institutions gain experience in regulating abortion.

 

As I often observe, we Americans are not the Swiss — or even the Germans or the Dutch. We are not an especially ruly or easily governed people, as witnessed by our unusually high homicide rates. (We have more shootings, stabbings, fatal beatings, strangulations, intentional drownings, vehicular homicides, etc., than do our European cousins — the relevant variable is not American firearms policy but American culture.) So it is unlikely that we will achieve 100 percent compliance with any abortion prohibitions we enact. There is an unwise instinct to insist that total compliance should be the goal of every statute, but when you think through that, the problems become obvious: Attaining total compliance with drug laws or traffic laws (among many other regulations) would require unacceptably invasive surveillance and inhumanely severe sanctions. Abortion is different from these because it is violence that targets a uniquely vulnerable victim, but we will by necessity be controlled by similar prudential considerations in that matter.

 

Being a conservative, my inclination is to begin with a modest policy and then wait for some time to see what results it actually produces. In the matter of abortion, there is some reason to believe that we could get most of what we want by imposing meaningful but by no means draconian sanctions on medical providers (doctors, nurses, pharmacists, etc.) who perform abortions, punishing them with a felony-homicide conviction that results in a fine and loss of licensure. Even though abortion has the elements of the most serious class of homicides (premeditation, etc.), we are not obligated to treat it that way. Even in this very serious matter, we should seek the least invasive means of achieving the outcome we desire.

 

If additional measures seem called for after some period of study and consideration, then these can be undertaken, gradually and carefully, as needed. There is no benefit — practical or political — in living down to the Left’s caricature of the pro-life position.

 

Contrary to what one hears from the familiar ghastly Malthusians among us, repealing Roe and imposing abortion restrictions won’t require us to build an archipelago of new orphanages, nor will it likely have much effect on publicly subsidized health-care costs. The number of U.S. families who wish to adopt a child exceeds by many multiples the number of children who are available for adoption (which is why so many Americans wishing to adopt go to the far corners of the world), and even if we assume that every single one of the abortions that happen in the United States in a typical year (estimates vary, but probably around 850,000) would otherwise result in a pregnancy subsidized by Medicaid or another government program, this would not add up to a great deal of money — probably less than half a day’s worth of Social Security spending. If additional support for vulnerable mothers is required, then that is a bearable cost. As with practically every other welfare initiative, our problem there is going to be program design and administration, not resources.

 

So, there will be no Handmaid’s Tale, no cinematic dystopia. The hysterics among us should be reminded that while the Mississippi law at issue in Dobbs prohibits abortion after 15 weeks, in France, the law prohibits it after 14 weeks. If your idea of a right-wing Christo-fascist hellhole is Paris, then you need a psychiatrist, not an abortionist.

 

We can be assertive and humane at the same time, provided that we keep our attention on the interests of the vulnerable parties involved in this issue rather than abandon ourselves to the tedious theater of pharisaical self-righteousness. Regulating abortion is going to be a divisive and difficult task, one that will raise too much emotion and too little careful thought. But there isn’t any law that says we have to continue to be stupid about it — American political tradition need be honored only so far.