Abortion and the limits of criminal law
Yesterday marked the 32nd anniversary of the U.S. Supreme Court's decision in Roe v. Wade. That decision was an abomination, lacking any basis in our Constitution's text, history or design. It was, as Justice Bryon White wrote in dissent, "an exercise of raw judicial power." Depending on how many appointments Mr. Bush ends up making to the Court, Roe may yet be overruled and the question of abortion's legality returned to the states, where it belongs.
You can believe, as I do, that Roe was wrongly decided and still believe that abortion ought to be legal. I think it should be legal during the first trimester. After the first trimester, I'd proscribe it in most circumstances, but not because I think I'd be preventing mid or late term abortions. We're talking here about criminal law, and I'm very skeptical of the law's ability to shape conduct where people are determined to do what they want to do. My own observations of human nature lead to me conclude that, at least in liberal democratic societies where punishments are usually not draconian, people obey the law only when it does not vary significantly from their own wishes.
As it relates to, say, gun control, I think most of my fellow conservatives share this view. The old adage "If you outlaw guns, only outlaws will have them" tells us that some people will insist on having guns, laws to the contrary notwithstanding. Speeding, although a relatively minor infraction of criminal law, is another example. Hordes of American drivers routinely speed, having calculated that the risk of a fine is outweighed by the inconvenience of their delay. But the law also often fails to prevent even the most serious of crimes with the most serious of penalties; the threat of capital punishment does not stop all capital crime.
So in deciding what conduct to subject to criminal statute, we ought to ask ourselves not what we're going to prevent but rather what we want to punish. In other words, after a particular act has been discovered, do we want to fine or incarcerate the offender? (You were already speeding at the time the officer stopped you. He didn't keep you from speeding; he just dinged you for it. And after the initial chastening wore off, you resumed speeding somewhere down the road, didn't you? The law was too much at odds with your wishes.)
Just as liberals have trouble accepting the limits of criminal law when it comes to gun control, conservatives have trouble accepting it when it comes to abortion. They write about the overturning of Roe as if it were the first step in the passing of laws to prohibit to abortions and therefore prevent them. For example, Ed Morrisey of Captain's Quarters wrote yesterday that Roe "paved the way for the destruction of 43 million fetuses," which implies that none of those abortions would have occurred in the absence of Roe. But that's false, isn't it?
In the first place, at the time of the Court's decision, some states had already liberalized their laws, so that women were having legal abortions even without a constitutional guarantee. And in any event, regardless of what the law says, some of those 43 million abortions -- exactly how many is impossible to say -- would have occurred anyway. The question conservatives must answer is whether they want to punish those women, their doctors or both. And if so, how? By fining them? By putting them in jail?
Lest we undermine respect for the rule of law, we ought not to pass a law unless we're willing to stand by as violators are caught and punished. If a woman has an abortion late in her pregnancy, I'm willing to say she should go to jail for it. But in the first few weeks of the pregnancy? Egad.