More Cans And Can’ts

Certain truths appear to be particularly difficult for people to accept. One such truth is on my mind this morning:

     Laws, coupled with sufficiently determined enforcement, can change the incentives and disincentives people face, but nothing else. If a politician proclaims himself in favor of a law that’s in harmony with one sector’s desires, he may win their votes (other things being equal). But even should he succeed in getting that law enacted, he will not alter the desires of those who want whatever the law forbids. They will simply face a new disincentive to satisfying that desire: the possibility of detection and prosecution.

     Often, the enactment of a law creates a new business. When the law forbids some practice, a cadre of occupational specialists may arise to satisfy those who seek what the law has forbidden. In the case of murder, we get hit men: specialists who accept the legal risks pertaining to willful homicide for a price. This is ordinary market behavior, dictated by the law of supply and demand. It doesn’t matter that the great majority of us deplore and condemn murder; those who want someone killed, and the specialists who will fulfill that desire for a fee, obviously feel differently.

     When the thing desired can be sought and obtained entirely in private, such that only the seeker and the supplier need know, the enforcement of the law is most difficult. Fourth and Fifth Amendment protections, plus the prohibition of entrapment, operate to impede detection and prosecution. In addition, there are enforcement costs to consider: if that cost exceeds a difficult-to-determine threshold, the state might not even try to do so. Such costs are seldom purely monetary. Often they include political components, such as the enforcement of the law against popular celebrities or the relatives of high officials.

     But politicians campaigning for office will seldom address any of that.

     Sometimes, we have to “swallow hard.” This will be required of us in a post Roe v. Wade era.

     Let’s assume that Roe is overruled. After that, some states will completely ban abortion. Others will maintain the pre-Roe regime, in which abortion is legal throughout pregnancy. A pregnant woman – call her Miss Smith – who resides in anti-abortion state X, wants an abortion and travels to pro-abortion state Y to get one. How will the law deal with this?

     There are several facets to the problem. One is the matter of jurisdiction. X cannot compel Y to assist in the prosecution of an action that’s not illegal in Y. Indeed, if Miss Smith declines to return to X, that’s the end of the matter legally, for Y cannot be compelled to deliver her to X’s authorities.

     Another facet involves detection of the crime. How would X’s authorities detect the act they had outlawed? It could well be that no one other than Miss Smith and her abortionist would ever know that it had happened. This is most likely in very early abortions, where only Miss Smith need know that she has conceived. At least one abortifacient technique – the D&C – is also performed for other, non-abortive reasons.

     The Fourth and Fifth Amendments’ protections of bodily privacy and against self-incrimination play into the affair as well. Miss Smith cannot be forced to submit to any medical procedure – e.g., a pregnancy test – before being indicted. Some legal scholars claim she’d be immune to such a “search” even after having been indicted. And of course she cannot be forced to testify or give evidence against herself. Her pregnancy is therefore concealable until late in her term, assuming she possesses the necessary discretion.

     Some of these impediments would also interfere with the enforcement of a worldwide ban on abortion. Therefore, given unwilling mothers-to-be and sympathetic medical professionals, even under the most sweeping, widescale ban on abortion, some abortions will still occur that will not be detected or prosecuted. We who are pro-life must be ready for this. Moreover, we must accept it. We must not demand that the Constitutional protections of our bodily privacy and our right not to self-incriminate be weakened.

     It would be a hard pill to get down, which is why we must prepare for it.

     President George W. Bush, when addressing the matter of abortion, spoke movingly of the need to “create a culture of life.” He was spot-on. The only imaginable way to eliminate the practice of abortion entirely is to produce a generation horrified by the very idea of it. Otherwise, no matter how stringent a law against abortion might be, some abortions will occur that will not be prosecuted.

     This is not an argument for legal permissiveness toward abortion. Rather, it’s a plea that we not destroy the protections of body and mind Americans have enjoyed since 1788. What we need above all else is a culture of life. Indeed, if we had one, a law forbidding abortion might not be necessary at all. But that would be a world beyond most contemporary imaginations. Today, I will only go there in fiction.