The New Abortion Prohibition Era

We already know what happens when governments try to impose prohibitions: messy, deadly black markets.

Americans disagree about abortion. This is the understatement of 2022, yet it bears repeating in the wake of Dobbs v. Jackson Women's Health Organization, the June Supreme Court decision that returned abortion policy to state and federal legislatures. Ten states have already banned abortion and another four have prohibited abortions after six weeks of pregnancy, which amounts to nearly the same thing.

We already know what happens when governments try to impose prohibitions. We've seen it play out in gun control, immigration, sex work, the war on drugs, and other issues where large groups of people want or need something the government tells them they're not allowed to have. The result is messy, deadly black markets.

The war on drugs has amply demonstrated the lengths to which governments will go to stop prohibited behavior. In the name of recreational drug prohibition, the state locks people up, steals their money, militarizes borders, wages war, and muddies international diplomacy. States abridge the voting rights, Second Amendment rights, and freedom of movement of hundreds of thousands of people associated with the sale and use of illegal drugs.

There is every reason to think that governments will do all this and more when it comes to abortion, which to pro-lifers represents a much graver threat than mere heroin or escorts. In fact, the drug-war apparatus that is already in place can be smoothly extended to the drugs already used in more than half of the roughly 650,000 abortions that happen in the U.S. annually.

We are entering the new abortion prohibition era, and we must reckon with its true costs.

There are plenty of pro-life libertarians, including several at Reason. They argue that the role of the state is to protect life, liberty, and property, that a fetus is a life, and therefore there is a justifiable state interest in banning abortion. This is a respectable view with a long history. Any good-faith conversation about abortion begins with a recognition that there may indeed be competing moral or legal claims between the woman and the fetus—between the mother and her child, if you like.

Most Americans think that, especially in the first trimester, it is permissible to resolve those claims in favor of the mother. A significant majority—about 85 percent—consistently tell pollsters they believe abortion in the first trimester is permissible. And more than 90 percent of the abortions that are actually performed are in the first trimester. Most Americans do not see the typical abortion as something that should be punishable in the way that murder is punishable. People arrive at this shared destination by walking many convoluted roads: through the rights to privacy, self-defense, or bodily autonomy; through feminism, environmentalism, or faith.

The fact that most Americans believe something doesn't tell us much about whether that thing is right or true, of course. After all, a majority of Americans also tell pollsters they believe Atlantis was real.

But even if large majorities shared the pro-life view, anti-abortion laws are still very different from laws against murder in an important respect. When there is such deep, sincerely held disagreement about matters of such personal import, when hundreds of thousands of women every year personally weigh the factors and decide that an abortion is the right choice, that is a signal that new prohibition regimes will be extremely costly, and perhaps ultimately unjustifiable. Not everything bad must be banned. In the last three decades, abortions have fallen precipitously, from a high of 1.4 million in 1990, even as the law has remained largely unchanged, suggesting that even those who believe abortion to be a moral nightmare have other options at their disposal and that those other tools were working. We should seriously consider whether the outcomes are better all around if governments leave it to individuals to persuade each other, help each other, and talk to each other.

To do that, Americans need to be able to speak freely about abortion. They will need to share information about how abortions work and who gets them. And they'll need to do that in broad daylight, so that bad information doesn't go unchecked. This will be more difficult in states that choose more draconian criminalization regimes.

Old federal laws, still on the books, about mailing abortion information are about to become extremely relevant. But most of us don't learn important information via the U.S. Postal Service these days; we get it online. Naturally, legislators of both parties are immediately keen to meddle with that flow.

In July, a group of congressional Democrats sent a letter to Google, demanding restrictions on search results for abortion-related terms that refer users to anti-abortion crisis pregnancy centers. Sen. Elizabeth Warren (D–Mass.) took things a step further, introducing a bill calling for the closure of the centers under the rubric of "disinformation." Republicans responded with a measured and principled defense of free speech and free association. Just kidding! They wrote a letter to Google threatening legal action if Google ceded to Democratic demands.

Model legislation being circulated by the anti-abortion group National Right to Life is forthright about its desire to restrict speech: Aiding and abetting an abortion, the group suggests, should "include, but not be limited to: (1) giving instructions over the telephone, the internet, or any other medium of communication regarding self-administered abortions or means to obtain an illegal abortion; (3) hosting or maintaining a website, or providing internet service, that encourages or facilitates efforts to obtain an illegal abortion; (4) offering or providing illegal 'abortion doula' services; and (5) providing referrals to an illegal abortion provider [numbering in original]."

Abortion will join sex work and election disinformation as a justification for restricting online speech, both personal and commercial.

Free speech isn't the only arena where many people will pay for abortion prohibitions with their liberties and privacy. To criminalize abortion is to make criminals of pregnant women and their doctors, as well as their mothers, their boyfriends, their Uber drivers, their pharmacists, their doulas, or anyone else who plays a part. Many opponents of abortion seek to downplay the harsh logic of prohibition and its consequences for those it is meant to help. But the incarcerated drug user and the child in a border camp beg to differ. Soon this cast will have another character: the bleeding woman forced to lie to her emergency room doctor.

As with other prohibitions, poor people and minorities will suffer most. People without resources in states with harsh restrictions will carry unwanted babies to term and, if current trends hold, they will most often keep them despite financial or personal difficulties they will face in doing so. Wealthy women will be able to travel to get abortions, and they will be able to hire lawyers to get them out of trouble when they get caught. In those cases, the new laws won't stop those women from getting abortions; instead they will simply get abortions secretly, unsupported, at greater expense, and far from home.

It's been a while since first-​trimester abortions were illegal anywhere in the United States. But we have spent the decades since Roe experimenting with all kinds of other prohibitions, and all we have for our trouble is a trail of death and destruction.