The Secular Case for Abortion Restrictions

The Washington Examiner

The secular case for abortion restrictions
by George W. Liebmann | July 27, 2020 12:00 AM

Chief Justice John Roberts’s controlling opinion in the recent Louisiana abortion case June Medical has been widely viewed as a setback for opponents of abortion as a constitutional right. But in fact, it paves the way for increased recognition of the validity of restrictions, such as counselling requirements and waiting periods, with its stated approval of cases that upheld them.

The majority opinion effectively repudiates the standard, but not the holding, of the recent Texas case in which Roberts had dissented. It also makes clear that the vitality of the court’s “undue burden” test for abortion restrictions was not at issue in the case

The abortion controversy is the ultimate political recruiting device. On the Right, it adds religious conservatives and rustics to a business constituency. On the Left, it adds suburban flappers to others bent on economic leveling. General De Gaulle once lauded American state governments for taking on “the immediate business of politics,” leading to political parties which “are opposed on none of the fundamental issues,” including “moral law.” The federal government now is, as in France, “the target of every grievance.” Justice Stevens and Geoffrey Stone have denied religion as a legitimate source of law. Yet most religious proscriptions have secular origins — not based in a desire to deny pleasure, but out of concern for the upbringing of the young.

No longer is the law viewed, in Justice Oliver Wendell Holmes’s words, as “the external deposit of our moral life.” Judge Learned Hand prophesized that absolute rules would generate “controversies undreamed of by those who use this facile means to enforce their will.” The assumption has been that legalized abortion reduces the numbers of unplanned pregnancies and unwanted children. As Justice John Paul Stevens said, “On a strict balancing of economic costs and benefits, the economic costs of unlimited childbearing would outweigh those of abortion.”

But despite those expectations, the number of unwanted pregnancies and births out of wedlock has only increased. Permissive abortion gave young men a hunting license. No longer would young women reject their sexual advances out of fear of pregnancy — “you can always get an abortion.” Nor would young men abstain from making unwanted advances, as legal abortion had greatly improved the odds in their favor.

Nobel Prize economist George Akerlof and his wife Janet Yellen, later chair of the Federal Reserve Board pointed out in two articles in 1996 that legalized abortion had brought an end to the “shotgun marriage” and any assumption of parental responsibilities by young men. Where once 43% of unwanted pregnancies had resulted in marriages, now the proportion is a mere 9%.

Yet many women, once pregnant, whether from maternal instinct, fear of future inability to conceive, or social and economic pressure, do not resort to abortion. Far from reducing births out of wedlock, the new rules produced an explosion of them. In 1970 only 5.7% of all births were out of wedlock in America’s white population. That number has risen to 29%. Likewise, out-of-wedlock births for blacks have risen from 38% to 71% in the same period.

Akerlof and Yellen were pessimistic that anything could be done about the consequences of ‘the pill’ and freely available abortion. But experience with welfare reform suggests they might be wrong. People are driven in their life decisions by fundamental fears. When it was discovered after the 1996 law that pregnancy no longer conferred an automatic right to independence from one’s mother and 18 years of state payments, the rate of pregnancies to unmarried teenagers fell sharply from 213 per thousand in 1990 to 65 per thousand in 2016.

Meanwhile, counseling requirements, prohibitions on third-trimester abortions, delay, uncertainty, public censure, and expense may produce lower proportions of births out of wedlock. Such lower numbers persist in Germany, where only 16% of children are raised by single mothers, compared to 26% in the U.S.

Abortion is said to be indispensable to broader female participation in the professions. But abortion-on-demand has played out very differently for less fortunate groups. Their lives have been disordered by the changes in mores. The changes have feminized poverty for the non-college educated. The media defenders of the absolutism of Roe v. Wade thus appear not as partisans of the Enlightenment, but as practitioners of class warfare.

Less fortunate women would almost certainly benefit from the changes in behavior that would result from stricter prohibitions on abortion. Those favoring greater restrictions thus cannot be dismissed as persons whose claims rest on religious superstition — on what Justice Stevens called “official endorsement of a theological tenet.” The argument about abortion cannot be characterized as a religious war between believers and nonbelievers. If the debate proceeds in the language of social science, with discussion of social consequences and indirect as well as direct effects, the media will be exposed as the real proponents of superstition, and their traditionalist opponents as the advocates of empiricism and social order.

George Liebmann, a Baltimore attorney, is the author of various works on law and history, most recently America’s Political Inventors.

Posted in: Culture Wars, Health Care, Judiciary and Legal Issues, Miscellaneous, Religion, State and Local Politics, The Right

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