Stigmatized Abortion

Three positions on abortion seem possible. One view is that abortion should (almost) always be legal. Another is that abortion should (almost) always be illegal. The third is that abortion should be legal, but stigmatized, the stigma being reflected by a lack of other federal funding and various other restrictions (the three positions are probably points on a continuum). Persuading most people of the normative virtues of stigmatized abortion is likely to be worthless. Most people who read this blog have strong feelings on the subject and, my sense is that all of us have run out of new normative arguments that might prove persuasive. Let me instead suggest two political virtues of stigmatized abortion.

First, the empirical evidence suggests that keeping abortion legal has far more powerful effects on access to abortion than any restrictive policy short of outright bans on the procedure. For example, the most conservative estimate I have seen is that 75% percent of persons formerly eligible for aid are able to obtain abortions when funding is cut off. The most liberal estimate is 95%. My best guess on the data is about 85-90%. Many restrictions on abortion are administered in ways that makes their impact entirely symbolic. Very, very few women have partial birth abortions. When abortion is legal, the crucial variable in determining access is whether private parties provides services, not the existence of restrictive laws. Point of emphasis. This is not to claim that restrictive laws do not matter and that many are medically stupid (misinforming people under the guise of informed consent being the best example). The big point is that a heavily regulated abortion right is not a hollow shell, that the vast majority of persons able to obtain abortions because of Roe v. Wade will still be able to obtain abortions if all the standard restrictions become law.

Second, the public opinion evidence suggests that most Americans favor some version of stigmatized abortion, that the overwhemingly disproportionate influence of activists on the Democratic and Republican party explains why neither party can get to the middle on this one. Whether or not it is true in principle, most Americans do not see bans on partial birth abortions as placing them on the slippery slope toward banning abortion altogether. What these means politically is that if debate over Justice Roberts, future judicial nominees, and abortion in general focuses on the immediate issue of partial birth abortions, parental consent, etc., the left loses. If the issue is retaining Roe, the left wins. Having lost more than my fair share of elections over the past years, I think I might be willing to stomach a few stupid consent laws to win some political battles for once. But then again, I am a member of the party and profession that given the opportunity to fight the 2004 election over whether homosexual sodomy should be criminalized, egged on a Massachusetts court to make the decision guaranteeing that the 2004 election would be fought over gay marriage.