The report made headlines across the globe, but even those generally sympathetic to its conclusions acknowledged the difficulties in performing a study like this. And the conclusions, as a result, seem to rest on very shaky foundations.
The subject is the new global study on abortion just published by the World Health Organization (WHO) and the Allan Guttmacher Institute (the research arm of Planned Parenthood). The New York Times summarized the findings: “Abortion rates are similar in countries where it is legal and those where it is not, suggesting that outlawing the procedure does little to deter women seeking it. Moreover, the researchers found that abortion was safe in countries where it was legal, but dangerous in countries where it was outlawed and performed clandestinely.”
Nearly anyone, reading that, will begin by raising questions about the methodology. How, for instance, do you get accurate data about illegal abortions? Can we make a broad statement about legal effects on abortion practice when countries that criminalize abortion have different types of laws (regulation, partial criminalization, total criminalization), penalize different people (abortion doctors or women), and apply different types of penalties (medical license revocation, monetary fines, jail time)? What about these societies’ varying levels of poverty, medical technology, and respect for the law? (For some preliminary critiques of the study, see here and here.)
If we assume that the study is accurate, however, some interesting conceptual questions follow. Over on the Mirror of Justice blog, Cornell University law professor Eduardo Penalver asks: “If this study were true, and if it were the case that making abortion illegal would most likely only drive it underground, without having much effect on its actual incidence but making it far more dangerous for women to have an abortion, would that be a reason to rethink the Church’s teachings, not on the morality of abortion, but on the tight connection between abortion’s (im)morality and its legality?”
All of us in the abortion debates ought to recognize that the women having abortions are often real (though secondary) victims of abortion. Even when physical harm doesn’t occur, women often still pay significant emotional, psychological, and spiritual tolls. If laws criminalizing abortion don’t save any babies but only cause harm to women, pro-lifers need to think carefully about supporting them.
And yet, in the end, the study should not change the way we understand the relation between abortion’s morality and abortion’s legality.
Think of it this way: Certainly it is the case that not every immorality should be made illegal. Of course there are some immoralities--other-regarding, as they are called--which deal with grave matters and touch on basic human rights, such as rape, murder, and slavery. But there are also immoralities, such as masturbation, that don’t involve other people and thus don’t raise questions of justice. Then, too, there are the supposedly victimless though still other-regarding immoralities such as prostitution. And finally there are other-regarding immoralities that are often thought to be of little significance: promise-breaking or disobeying one’s parents.
In theory, legal sanctions could be attached to any immoral action because of its damage to a community’s moral ecology. If part of the purpose of the state is to assist citizens in flourishing--materially (by providing schooling and health care) as well as morally (by promoting stable marriages and discouraging drug use and prostitution)--then it is clearly permissible in principle to criminalize bad acts.
We must exercise political prudence, however, to determine when the damage done in criminalizing an activity outweighs any potential benefit--because it grants too much power to the state, or deflects limited law enforcement resources away from the detection and prosecution of more serious crimes, or creates unenforceable laws that will be flouted in ways that tend to bring the entirety of law into disrepute. That’s why you don’t hear Catholic bishops arguing to outlaw contraception. There are plenty of immoral acts that no one seriously entertains criminalizing.
Yet most legal and political theorists agree that a just society provides legal protections for its members against the most egregious of assaults--actions that fall into the first category described above. Some say that this is the most fundamental, in fact the essential, task of government: to secure their citizens’ basic rights.
The question, then, is this: In what category does abortion fall? Abortion isn’t considered wrong because it violates purity standards or religious obligations. No, abortion is typically understood as intrinsically immoral because it entails the direct killing of an innocent human being.
The argument usually includes two key premises: As a matter of scientific fact the human fetus is nothing other than a whole living member of the human species at an early developmental stage, and every human being--simply in virtue of his or her humanity--is the subject of profound worth and intrinsic dignity. The argument might be wrong, but if it is sound, then it follows that intentionally killing a human being--even in the fetal stage--is a grave injustice and a serious violation of basic human rights.
Society’s task, then, is to prevent abortions from occurring and to find ways for pregnant women to bring their babies to term. This effort is a multi-faceted one. It involves caring for pregnant women the way that the Sisters of Life do, providing counseling for women in crises the way that crisis-pregnancy centers do, offering quality education and job-training for the most disadvantaged women in society the way that many Catholic schools in urban settings do, teaching society at large about the reality of abortion the way that many pro-life educators do, and enacting public policies that alleviate the social and economic causes of abortion.
But the law is important, too. If abortion is really the unjust killing of an innocent human being, then governments should provide meaningful protections for the unborn. Otherwise, they fail in their essential task of protecting the public from unjust aggressors.
Thus, governments should pass laws that place criminal sanctions on anyone who performs an abortion--the act that kills an unborn child. Women in crisis pregnancies face all sorts of emotional and psychological distress while deciding what to do about their pregnancies and often make their decisions under severe duress. They need not be further punished. Abortionists, however, operate with clear intent and ample reflection. Often they’ve established abortion clinics, purchased the tools of the trade, and built impressive networks of abortion providers. Punishing the doctors who crush the skulls and suck the brains out of unborn babies seems only appropriate.
It is at this point that Penalver’s question becomes most relevant: What if punishing abortionists isn’t effective? What if the record showed that criminal sanctions do not reduce the number of abortions? To answer this, a parallel might help: What if during the early days of abolition people claimed that the results of outlawing the slave trade wouldn’t reduce the number of slaves but would only have deleterious effects on those slaves who now would be transported on the black market? I doubt that any of us would consider this a reason not to start down the road of criminalizing slavery and emancipating slaves.
Our response, rather, would be to urge the state to work harder to enforce its laws and protect its people. That a law proves ineffective at first is no reason to give up on the law or its purpose. Slavery would still be a horrific evil, a direct affront to basic human rights and human dignity. And our preceding considerations about the purpose of governments in protecting their citizens from these types of evil wouldn’t be affected at all.
The same is true of abortion. And in a society such as ours, there is good reason to think that laws regulating the actions of abortionists would have teeth. This is especially the case when one considers the historical record. For two hundred years, abortion laws in this country were effective. It was only after Roe v. Wade that our abortion numbers ballooned to well over a million a year. And as Dr. Bernard Nathanson notes in his “Confession of an Ex-Abortionist,” the number of women dying from illegal abortions back when he founded NARAL was fewer than 250 a year; the number he kept telling the media was 10,000. One wonders if the WHO–Guttmacher study doesn’t suffer from similar deficiencies.
And remember that if Roe is ever overturned (or at least rolled back), then the question of abortion regulation would fall to the states. We would likely end up with many different laws in the various states ranging from the total prohibition of abortion to the total legal protection of even partial-birth abortion. Each state would pass a law best suited to the mentalities of its people. And most citizens would likely comply with these laws. This is all the more plausible given Americans' general respect for the law (especially high when compared to other countries) and the strong professionalization of medicine and child-bearing. Too few abortionists would be willing to run the risks. And while some desperate women might resort to back-alley abortions, the numbers wouldn’t be anywhere near what they are now--and, as Nathanson has noted, modern technology would make even so-called “back alley” abortions relatively safe for a woman from a medical viewpoint.
Of course, this means that liberal states like Massachusetts and New York might allow abortion on demand. Or at least they would at first. But the argument about abortion’s immorality--and why that should translate into its illegality--would still stand. And with the pro-life movement continuing its education campaigns, outreach to women in crisis, and push for the legal rights of the unborn, there’s good reason to hope that, over time, pro-life laws would expand and meaningful protections would be established.
Ryan T. Anderson is an assistant editor at First Things. A 2007 Phillips Foundation fellow, he is the assistant director of the Program in Bioethics at the Witherspoon Institute of Princeton, New Jersey.