Should municipalities be able to set themselves up as "abortion sanctuary cities," where anyone who has had the procedure or is considering do so is given special legal protections?
St. Louis tried to do just that earlier this year, when the board of aldermen passed an ordinance making it illegal for an employer or housing provider to discriminate against women for their "reproductive choices." The state House responded with a bill to override the local law, but it stalled in the state Senate. Now, Republican Gov. Eric Greitens has called an emergency session, bringing lawmakers back to the capital to try again.
What should libertarians make of this hullaballoo? Below are five points worth considering.
1. The St. Louis ordinance is troubling from a libertarian perspective. Whatever your feelings about the right to terminate a pregnancy, "abortion sanctuary cities" ought to be opposed on libertarian grounds. This law creates a new protected class in the form of women who have gotten an abortion or are thinking about doing so, opening up countless private organizations to the threat of lawsuits. More to the point, it infringes on the associational liberty of individuals and groups by saying that lawmakers' values trump their own. I've written (not once but twice) that religious employees also should not get special legal protections, and for the same reason: In a free country, people have to be allowed to make decisions for themselves about whom to enter into business relationships with, and whom not to—even when they make choices the rest of us don't like.
2. The St. Louis ordinance threatens the existence of crisis pregnancy centers and other pro-life groups. Ask yourself whether the state of Missouri would be a better or a worse place if Our Lady's Inn were driven out of business. The network of maternity homes has for 35 years given support and resources to pregnant women and new mothers who opted not to abort their babies. The St. Louis Review reports:
"The ordinance prevents me from hiring only individuals who support our alternatives to abortion mission," said president and executive director Peggy Forrest. "It also requires Our Lady's Inn to house women who intend to have an abortion. … This forces us to be complicit in that decision."
Since the ordinance's passage, the agency has had a couple of instances in which women have called inquiring about services, but seemed to have questionable motives, Forrest said.
"The potential is really large, since the passage of this ordinance, that women either pretending to need services or knowing full well they don't want the services that we provide will engage us just to see if they can catch us in violating the ordinance," Forrest said. "It's insincere and takes up time for women who really are interested in our services.
Pro-choicers often accuse pro-lifers of caring about unborn children to the exclusion of the well-being of their moms. Abortion opponents are denounced for not doing enough to aid women who face difficult circumstances such as poverty, homelessness, lack of health insurance, or abusive relationships. Our Lady's Inn, like scores of crisis pregnancy centers around the country, put their money and their man-hours where their mouths are by offering needed services to women so they won't feel so much pressure to choose abortion. As thanks, St. Louis passed an ordinance that undermines these groups' ability to operate.
3. There is no bright line between discrimination based on a choice and discrimination based on a category of person. Back in January, some liberal fashion designers announced a boycott of incoming first lady Melania Trump, even though they had happily created custom apparel for Michelle Obama. "The Sophie Theallet brand stands against all discrimination and prejudice," one designer explained, and as a result she would be exercising her right not to associate in any way with the new administration.
All of which was well and good, until I pointed out that the same associational rights should be extended to Christian wedding vendors who don't want to be forced to use their crafts to celebrate values they disagree with. Of course, many of the same people who had shared Theallet's letter in solidarity were strongly opposed to that. So they searched for, and found, a convenient excuse for the contradiction: It's fine to discriminate against someone for the choices he or she makes, they said, but wrong to discriminate against people because of "who they are." The reasonable-sounding idea is that certain things (race, sexual orientation, etc.) are outside of our control, and so we shouldn't be punished for them. But choosing to behave like a bigot—or, in this case, to marry one—well, that makes you fair game.
That distinction might have allowed some people to sleep better at night for a while. But as the St. Louis ordinance proves, it doesn't actually hold water. It's hard to think of a more pure example of a "choice" than having an abortion. A whole rhetorical edifice about a woman's right to choose has grown up around the procedure, after all. Yet here we have a law that prohibits people in the city from behaving exactly as those brave fashion designers did, by declining to associate with people who have made a choice they find morally abhorrent. Discrimination is wrong, the left might as well come out and say—except when my side wants to do it.
4. "But it's legal" is no defense. Let's dispense with the silly notion that anything that's legal must also be tolerated. Lots of things are immoral or obnoxious without also being against the law, and most people have no trouble understanding as much when it comes to behavior such as adultery. (It's both wrong to cheat on your spouse and fine to divorce him or her for being unfaithful, but that doesn't mean we should empower men with guns to lock up dalliers for straying beyond their marriage vows.) Yes, Americans have the right under law to get an abortion. They should also have the right to make decisions about whom to associate with based on whatever values are most important to them. Recall that voting for the current occupant of the Oval Office was also perfectly legal. Unless you think the government should be able to compel progressive advocacy groups to hire outspoken Trump supporters, you already agree with me on this.
5. The St. Louis ordinance may be bad, but that doesn't necessarily make the Missouri bill good. Greitens brought state lawmakers back into session today in hopes that they'll find a way to pass House Bill No. 174 (which would pre-empt the abortion sanctuary ordinance) or similar legislation. In a vacuum, such a law would be a big step forward. In reality, there's cause for concern from libertarians. Committed federalists will, for example, dislike that the bill moves decision-making power further away from the people. But here's the bigger problem: The attempt to stop terrible St. Louis–style ordinances in the state has been rolled together with an effort to impose more red tape on abortion providers. Greitens "wants lawmakers to consider new regulations, including annual inspections of clinics," McClatchey reported last week.
Supporters say these regulations are needed to protect women's "health and safety." But there's no doubt the real purpose is to drive many such clinics out of business. Now, I write this as (famously or infamously, depending on your view) the token pro-life libertarian here at Reason. I look hopefully forward to a world where few if any women choose abortion. But if history and economics have taught us anything, it's that top-down prohibition doesn't work. Wrapping abortion providers in onerous regulations merely drives people into even-more-dangerous black markets. If the pro-life movement is going to succeed on this issue, it has to be by winning hearts and minds, not targeting our opponents with the same types of disingenuous legal strictures we're criticizing St. Louis lawmakers for.