Objection: Making Abortion Illegal Will Never Stop Abortion
(Companion to Human Things Podcast S3 E9)
Legal scholar and historian Joseph Dellapenna in his massive book Dispelling the Myths of Abortion History once wrote, “I take it as axiomatic that as long as there have been humans there have been people who did not want to be burdened by a child, and would do whatever it took to be rid of an unwanted infant.”[1] This quotes comes at the beginning of a chapter on the historical prevalence of infanticide versus abortion, meaning included in Dellapenna”s “whatever it took” was killing children after they were born. It also true that for as long as women have been getting pregnant there have been men who would do almost anything to end the new life and avoid the consequences of their behavior, whether those consequence be the responsibility of fatherhood, or the shame incurred, hidden dalliances becoming public. Even today, Charlotte Lozier Institute claims as many as 60% of abortions happen due to some coercion or pressure from men. As Professor Robert George of Princeton University has written on Facebook, people want their abortions. They want to believe they can live a life of sexual activity free from the emotional, spiritual, and physical entanglements natural to sexual relationships. Abortion is their magic reset button.
That is why the objection from abortion rights advocates that even if we make it illegal people will still get abortions carries so much intuitive and rhetorical force. People have always wanted abortions. People have always sought abortions. People will always seek abortions. What do the foes of abortion hope to accomplish by making it illegal?
This objection makes a few key errors. It misunderstands the power of restrictive laws beyond their inability to wipe out certain behaviors. Laws against murder, rape, child abuse, sex slavery, spousal abuse, and theft don’t stop those crimes altogether. They do limit those crimes as much as possible while providing enforcement measures to be used against people who violate the law and educating our community about shared moral standards. The most important question isn’t whether restrictive laws will end all abortion. The most important question is whether nascent human life is a full member of the human family. Are the embryonic and fetal humans like us? If the answer is yes, then we ought to protect them under the law the same way we protect human life through laws restricting murder, rape, abuse, etc.
Imagine a man holding a child insisting that should we seek to make child abuse illegal he will most assuredly beat this child anyway. It is the prerogative of the parent to raise the child as he sees fit. Imagine a slave owner in 1860 Georgia who insisted that if we sought to make slavery illegal, he would continue to exploit black men and women and treat them like animals. Slavery will continue in some form as will racial violence. Laws won’t stop it. Both scenarios were realities in our nation’s past.[2] [3] In both cases, it is true that both child abuse and slavery continue to exist, though not as they did prior to the enacting of laws protecting victims from the inhumanity of their neighbor. The threats of the immoral did not deter collective efforts to create communities which condemn the horrors of abuse and slavery.
The new laws provided two important possibilities. The first is the ability to punish evil. To be clear, prior to protective laws small, motivated groups worked to protect children in their community from obvious and terrible abuse. In the same way, the Underground Railroad and people like Harriet Tubman fought the evil of slavery prior to the 13th Amendment to the U.S. Constitution. The passing of protective laws, even though laws provided too little protection for black Americans during Reconstruction, flipped the dynamic. Those who wished to continue to abuse were now the outliers and the those committed to protecting human life from abuse were the institutional norm. Children continued to be abused and black Americans continued to be treated with terrible brutality for simply exercising their basic human rights like the right to vote or peaceably assemble in protest. In spite of the continued abuses, society was on the right path and the legal recognition of the humanity and value of children and black Americans set in motion a series of events that would continue to marginalize the voices of indifference and hatred. The force of law would eventually come to bear against those who resisted moral improvement through violent means.
In addition to the ability to punish evil, new protective laws serve to educate the community on the nature of good and evil. In 1980, after her 13-year-old daughter was killed by a drunk driver while walking to church, Candace Lightner founded Mothers Against Drunk Driving.[4] The efforts they spearheaded to end drunk driving deaths were not without controversy. In 1984, President Ronald Reagan signed a law raising the minimum drinking age to 21 years old. Police were empowered to stop motorists and, in some cases, set up roadblocks and administer Field Sobriety Tests. Some early punishments included things like community service or counseling. As the public became more comfortable with the accuracy of breathalyzer tests for blood alcohol content, the acceptable level of blood alcohol content dropped, and the punishments increased.[5] In fact, in all three of the cases mentioned, full protection under federal law for abused children, racial equality, and the policing of drunk driving happened in the lifetime of my parents. Laws educated the community and limited evil as much as possible while putting us all on a path toward moral improvement.
The ”Women Will Die” Objection
They often add that making abortion illegal we will force women into dangerous self-administered abortions and women will die. Students have argued with me during Q&A’s that prior to Roe v Wade women died by the thousands from illegal abortions. Laws restricting abortion will not stop abortion and women will suffer as the practice becomes less regulated and less safe. Journalist Kavitha Surana at ProPublica recently released a series of articles on two women in Georgia who she claims died preventable deaths because of Georgia laws restricting the practice of abortion. This objection requires serious consideration given the subject matter, unnecessary deaths of women in our communities.
Doctor Bernard Nathanson was an abortion practitioner who fought to legalize abortion. He claimed he and his allies relied mostly on anecdotal arguments from misery to make their case, but when pushed to provide a figure on how many women died from illegal abortion annually, they gave the numbers 5,000 to 10,000.[6] These numbers were completely fabricated to create a sense of panic. He admits this, believing the actual number to be around 500. Statistics from the CDC give the number of women dying from all abortions in 1972, legal and illegal, at 90 which is consistent with the deathrate estimates by Dr. Christopher Tietz as 50-100 per 100,000 abortions. That deathrate appears consistent in countries with legal abortion as well.[7] Women will die from abortion, whether legal or illegal.
How then do we respond to the preventable deaths reported in ProPublica? I will devote an entire article to this question next week, but there are important facts to consider. Amber Nicole Thurman’s death, which was mentioned by Vice-President Harris in a recent speech in Atlanta, cannot be attributed to abortion restrictive laws in Georgia for two reasons. First, despite what Surana repeatedly asserts in multiple articles, a D&C is not illegal in Georgia to remove the remains of an already dead child. It isn’t even illegal in Georgia if the child is still alive to “prevent the death of the pregnant woman or substantial and irreversible physical impairment of a major bodily function.”[8] Thurman’s condition clearly met those criteria. Surana assigns some blame to the fact she had to leave Georgia to procure an abortion, planned a D&C in North Carolina, but failed to make appointment due to traffic ultimately leading her to take the medical abortion option offered when the North Carolina facility refused to perform the D&C because they were overbooked. Thurman took pills abortion advocates insist are safer than Tylenol, got sick, and waited to go the hospital.
Once there, why didn’t the doctors perform the D&C? It was perfectly legal to do so. This leads to the second point, neither Surana or Kamala Harris know the answer to that question, because the hospital hasn’t offered an answer. Surana writes, “It is not clear from the records available why doctors waited to provide a D&C to Thurman, though the summary report shows they discussed the procedure at least twice in the hours before they finally did.”[9] She also writes that the review board which determined the death as preventable concluded, “There is a ‘good chance’ providing a D&C earlier could have prevented Amber Thurman’s death.” None of this is conclusive. Here is what we know, both in the death of Amber Thurman and Candi Miller,[10] two women were legally prescribed medicine to abort their unborn children, both got sick and died because of the ineffectiveness of that medical protocol to fully expel the remains for their children. Abortion laws did not cause their deaths. Abortion did. The extent to which they would have had better access to abortion procedures in a state friendlier to abortion is speculation and the only way to morally blame the impediments to abortion is to conclude they had no choice but to kill their unborn children. That simply is not the case. They wanted abortion, but they didn’t have to get abortions. They chose that path all the while encouraged by abortion advocates insisting that abortion is safer than childbirth and medical abortion is safer than Tylenol. Their deaths were preventable tragedies, on that all parties can agree.
We don’t pass permissive laws because people promise us they will hurt themselves if we don’t. The relevant question is, “What is the unborn?” If the best arguments inform us the unborn is one of us, then they must be treated as one of us. We cannot tell women out of fear they will hurt themselves we will legally allow them to destroy more than a million human lives a year out of misplaced compassion. Desperate people sometimes commit desperate acts with terrible consequences. Understanding their desperation, empathizing with the fear or anxiety feeding that desperation, doesn’t create a moral allowance for their behavior. It is just baseline for being a good human being.
Laws Protect Us from Ourselves
In Cormac McCarthy’s No Country for Old Men, a character is talking about the decline of civilization. He makes the comment that good men don’t need laws to control them and bad people can’t be governed at all. Any actual society resides somewhere between those two states.
It should be hard to get abortions, not because abortion restrictive laws end abortion but because good people want laws to restrict their behavior on the rare occasions they desire to do evil. Even good men can be tempted. Our passions, fears, and ambitions rise clouding our moral commitments. Just laws can stay our hand when our character wavers. If abortion is the unjust taking of human life, it ought to be difficult to get an abortion.
Does that mean abortions will become riskier? Almost certainly in the short term. Does it mean women will die? Unfortunately, women will die from abortion. It is part of the greater evil of abortion, the evil multiplied beyond the taking of innocent life. Unnecessarily destroying our fellow man is a great evil from which we should expect many ancillary evils. Women will not die in the numbers proponents of abortion claim, and they will certainly not die in equal numbers to the nascent human lives destroyed through abortion. Even so, we should make it hard to get abortions. The unborn are one of us.
[1] Joseph W. Dellapenna, Dispelling the Myths of Abortion History, (Durham: Carolina Academic Press, 2006) 57
[2]John E.B. Myers, A Short History of Child Protection in America, Issue Lab, https://search.issuelab.org/resources/29082/29082.pdf
[3] Reconstruction in America: Racial Violence After the Civil War 1865-1876, Equal Justice Amendment, https://eji.org/report/reconstruction-in-america/
[4] https://surveys.signforgood.com/madd-history-timeline
[5] “Why and How Did .08 Become the Legal BAC Limit?” Kanner & Pintaluga, https://kpattorney.com/why-how-08-become-legal-bac-limit/#:~:text=Most%20states%20initially%20adopted%20a,15.
[6] https://www.bmj.com/rapid-response/2011/11/03/how-abortion-movement-started-deceit-and-lies-dr-nathanson
[7] “The Big Lie: Thousands of Illegal Abortion Deaths,” EWTN, https://www.ewtn.com/catholicism/library/big-lie-thousand-of-illegal-abortion-deaths-9596
[8] Georgia Code Title 16. Crimes and Offenses § 16-12-141
[9] Kavitha Surana, “Abortion Bans Have Delayed Emergency Medical Care. In Georgia, Experts Say This Mother’s Death Was Preventable,” ProPublica, September 16, 2024,
https://www.propublica.org/article/georgia-abortion-ban-amber-thurman-death
[10] Kavitha Surana, “Afraid to Seek Care Amid Georgia’s Abortion Ban, She Stayed at Home and Died,” ProPublica, September 18, 2024,https://www.propublica.org/article/candi-miller-abortion-ban-death-georgia