Enforcing Abortion Bans Is Much Harder Than Winning in Court

There’s no painless way to restrict choices for people who resist.

Before my son's birth, my wife had three miscarriages. In an era of less-advanced medicine, those brief pregnancies might never have been detected, but they were and the end of each was heart-wrenching, no matter that they were undoubtedly caused by abnormalities. But what if she'd done something that might have triggered the miscarriages? Now that the majority of abortions involve medication instead of surgery, linking the end of a pregnancy to individuals' decisions isn't as simple as some abortion opponents claim and has already resulted in disturbing arrests and prosecutions. As pro-lifers celebrate their victory in a post-Roe world, they should tread lightly or risk creating new horrors.

"The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives," the Supreme Court ruled last week. The decision in Dobbs v. Jackson Women's Health Organization came as little surprise not just because of the leak of Justice Samuel Alito's draft opinion in the case, but because Roe has been taught for decades as an example of a court opinion that substituted hand-waving for legal reasoning.

But we know that advocacy of liberty doesn't begin and end with judicial approval. Gun owners advocated for owning the means for self-defense rights long before courts acknowledged that the Second Amendment protects individual rights. Gays and lesbians pursued relationships even while laws criminalized their lives. Fanciers of intoxicants from marijuana to mushrooms certainly haven't waited for legal permission before indulging.

For abortion, the matter is further complicated because pregnancies end naturally, sometimes before women know they are pregnant. In the past, that often meant developing children weren't recognized as such until well along. "Life…begins in contemplation of law as soon as an infant is able to stir in the mother's womb," William Blackstone wrote in his Commentaries on the Laws of England, published in the 1760s. Only at the point of "quickening," usually around 16-20 weeks, could prosecutions be brought "if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb."

Modern medicine makes it easier to detect pregnancies, such as in my wife's case. But it makes those pregnancies no less susceptible to flaws in their makeup, or to physical activity, or to environmental factors. Rather than more viable fetuses, that creates more grounds for heartbreak. It also, potentially, offers more opportunities for officials lacking judgment to exacerbate the tragedy.

"Brittney Poolaw has been sitting in an Oklahoma jail for more than a year and a half," Reason's Billy Binion noted last October. "She will spend still more time behind bars, having been recently convicted of first-degree manslaughter and sentenced to 4 years in prison for miscarrying her child last year."

"In May 2020, Poolaw, then a teen, arrived at a local hospital after losing the fetus at 17 weeks. She was soon transferred to a cell and charged with the felony, on the theory that drug abuse had led to the fetus' demise."

As evidenced by Blackstone's reference to "a potion," the idea that chemicals can induce abortions is not a new one. Poolaw went to prison because prosecutors decided that her drug intake, and not the fetus's congenital abnormalities, ended the pregnancy and this should be treated as a crime.

But "a potion" can be taken to deliberately end a pregnancy and not just incidentally. That was true in 1765, it was the case years ago when women first purchased misoprostol (sold over the counter in Mexico as an ulcer medication) to end pregnancies, and it's the case now that mifepristone and misoprostol used together have become the predominant means of performing abortions.

"New research from the Guttmacher Institute shows that 20 years after its introduction, medication abortion accounted for more than half of all abortions in the United States," the Guttmacher Institute, a contraception research organization, reported earlier this year.

That's in addition to the use of levonorgestrel, commonly sold as "Plan B," to prevent pregnancy after sex (levonorgestrel is considered an abortion drug by some right-to-life activists). The majority of abortions are now performed non-surgically and have become increasingly difficult to distinguish from my wife's miscarriages. 

Plan B and abortion pills didn't appear out of the blue, of course. Gun-rights activists with 80-percent receivers in their workshops, and underground chemists fashioning new and interesting synthetic intoxicants should recognize that advocates for officially discouraged freedom always find a way. The goal of such innovation is to make restrictive laws unenforceable, and it works as well with mail-order abortion pills as it does with other solutions to grasping laws.

After Texas's six-week limit on abortions went into effect last year, Aid Access, which is based in Austria and works to circumvent restrictive laws around the world, reported a surge in orders for abortion pills from the state. "In the first week after [the law] went into effect (September 1-8, 2021), mean daily requests increased by 1180% over baseline," noted a study published in the Journal of the American Medical Association. Plan C, maintained by the National Women's Health Network, offers advice for using Aid Access and other sources for online consultations and mail-order medication, and the U.S. Justice Department says that "States may not ban Mifepristone." 

Of course, many women seeking abortions still require surgical procedures, which will remain available in many states after the Dobbs decision. Some state governments, including California, Oregon, and Washington, have committed "to protecting patients and doctors against efforts by other states to export their abortion bans to our states." The federal government and Justice Brett Kavanaugh also say that officials can't prevent women from traveling out of state to get abortions.

Even if they could restrict travel, that leaves authorities serious about enforcing abortion laws in the position of assessing miscarriages and out-of-state trips. As with all attempts at restrictions and prohibitions, enforcement requires an ever-more-intrusive regime of surveillance and second-guessing. Some lawbreakers will be caught, and others will be abused by authorities seeking scofflaws in family tragedies. That's inevitable when you try to restrict choices for a resistant part of your population, as should be obvious to anybody familiar with the brutal and bizarre history of enforcement efforts for gun controls, bans on same-sex relations, the war on drugs, and Prohibition. Really, laws work only for defining penalties for engaging in acts that virtually everybody agrees are wrong.

I don't know exactly what an inquisition into my wife's miscarriages would have looked like. But I do know that it would have done nothing to ease her anguish. Abortion opponents won their victory in the Supreme Court, and now it's on them to avoid making difficult situations much worse.