Persuasion? Legal Prohibition? Legal Influence?

A response to Abortion and Civil War by Chuck Fager.

by Rachel MacNair

Rachel notes: An original was written closer to the time of Chuck’s essay and the essay below starts out the same, but the bottom part has been re-written because of the Dobbs decision of June 24, 2022, plus a lot of other thought I’ve devoted to the points since then. 

Friend Chuck Fager has written a very thoughtful and well-reasoned essay which includes the idea that, while abortion is violence and therefore to be opposed, a legal prohibition is counter-productive, and a persuasionist approach much better.

I don’t think that there’s much doubt that persuasion is far superior to legal bans. If we had to pick one over the other, we’d take persuasion. After all, cannibalism is not banned in many places, yet it happens rarely because people are persuaded it’s revolting. Long experience shows that legal prohibitions that people are not persuaded are necessary don’t work well. The Prohibition with a capital “P” is often cited, and Chuck cites it, as the prime case.

But of course all laws require persuasion. Most of them have it.

In the case of prohibition of alcohol, there were also no victims who complained to police. In abortion, the baby may be a victim of violence, but in days of yore was completely unable to make a case for herself before she was killed, and still today can’t make a complaint afterward. She’s not recorded so as to be seen to be missing, and what’s left of her body is easily disposed of. So previous to the legalization of abortion, the same problems as legal bans on alcohol applied.

 

Civil Rights

However, there’s another analogy on legal prohibitions: the civil rights laws. For decades, segregation and other racist indignities were done with impunity because while the victims were obvious, most didn’t dare complain, and those that did complain weren’t taken seriously. Is this not really a closer analogy? Alcohol consumption, after all, is not in and of itself violent. It can lead to violence, which was a major part of the case against it, but it doesn’t have to. But racism is necessarily a form of violence — structural violence — and abortion is necessarily a form of direct violence.

When civil rights laws were contemplated, some complained that you can’t legislate morality. You can’t make people see other races as equal by law decree.

One counter-argument is that the law is a teacher. While there is still a depressing amount of racism because it is in fact true that the law couldn’t banish it by decree, it is also pretty clear that attitudes have changed dramatically from what they were before. Civil rights laws were part of that mix of things that helped that to happen – not by themselves, by any means, but they helped directly, and they helped indirectly by influencing the other things that also helped.

That the model of civil rights legislation is better than the John Brown approach with civil war is a point that is not only obvious to most Friends, but to the vast bulk of the right-to-life movement as well. Much of that movement seems more impressed with what the legal status of abortion can do than I am, but I still see legislation as having a role.

The basic core of the problem for me is that as long as abortions are legal, then the government is participating in the deception of women. Many women reason that it can’t be killing if it’s legal, and when they found out better after it’s too late, it can be quite traumatizing. The legal status bears part of the blame. It also deprives such women of adequate legal recourse.

 

Now – Post-Dobbs

Chuck points out that a woman in a state where abortion is illegal will always be able to go to a state where it is. Now that several states have done so and more might, this is obvious. States like New York and California are not going to be talked into banning abortion, or ceasing having tax dollars pay for it, any time soon.

First, we need to consider that there’s a continuum of how much women want abortion:

We know a lot about those who were pressured or felt ambivalent because women who’ve had abortions are a major constituency of the pro-life movement. Also, sidewalk advocates are frequently talking women out of abortion at the most unlikely place – at the abortion clinic when they’re going in for their appointment.

And obviously, those that feel pressured by others are positively protected by laws that keep the abortion clinic from being right there handy. The others in the middle are talked out of it easily enough if a trip to another state is in the mix, though there will be some rich women for whom an out-of-state trip is not as big a deal. Only those and the desperate will travel. They’re only a portion of the entire group of women.

Studies show that distance from the abortion clinic lowers the abortion rate. What about informed consent, waiting periods, cutting Medicaid funding, parental notification, and similar regulations? See my blog post, What Studies Show: Impact of Abortion Regulations. With studies mainly done by people who oppose those regulations, the most common pattern is that the abortion rate goes down quite a bit – and the childbirth rate goes down slightly.

So one point is that we can’t assume the number of pregnancies is a given. We women don’t catch pregnancies the way we catch colds. As it is, the number of vasectomies shot up starting on the day of the Dobbs decision.

We also need to take into account a major harm done by having abortion clinics nearby to under-age girls who’ve suffered sexual violence: their abusers take them there for a successful cover-up of the crime. This has allowed the crime to continue. See Abortion Facilitates Sex Abuse: Documentation.

Once the dust clears on which states ban abortion, which states encourage it, and which states go back and forth with their political winds, the point that women in the states that ban it need to have support for motherhood in order to be talked out of traveling to another state will become all the more obvious. Of course, it’s been obvious all along, but some of us can see that more readily than others. Several prominent pro-lifers have addressed the point by signing a statement on it in Building a Post-Roe Future, and Make Birth Free is a lengthy explanation for covering all obstetrics. We may be able to get all kinds of women’s-rights and poverty-reducing legislation passed because of this dynamic.

Finally, since we’re no longer questioning whether it’s a good idea to have this mixture of state approaches to abortion, but rather observing that it’s happening, I’ve delineated what we need to look for on maternal mortality, child abuse, crime, and poverty in Post-Roe Stats: the Natural Experiment.

 

The Problem of Politics

Yet Chuck has one other very important point: the politics of abortion is truly depressing. In most cases, and especially for higher office, the more anti-abortion candidate will be worse on war, death penalty, poverty programs, etc.

Yet a major reason we’re in this mess isn’t just that right-wingers are welcoming people of tender conscience with a concern for babies into the movement, thereby being persuasive for other right-wing ideas. It’s also that left-wingers aren’t hopping into the movement in droves so as to be persuasive for their own ideas and to dispel stereotypes. (This is inasmuch as right and left wing make any sense, which I question, but I’ll use it for shorthand). There are many of us in the left wing trying to do so, but not enough. If there were more, then we could get this major problem taken care of as well.

I’ll say it more strongly: it’s not a good idea for us peaceniks to be ceding the moral high ground on the tearing-apart of little babies to the politicians with pro-war policies. As long as we remain silent on abortion, that’s what we’re doing.