Dobbs v. Jackson Women’s Health Organization was not only bad for women, their health, and their families’ well-being; its inevitable consequences were also bad for the rule of law.
Activists aim to do something about it, as described in a December 11 New York Times story. More on that subject in a moment.
It’s an axiom of political theory that defiance of the law undermines it. As far back as Plato’s Crito, it has been accepted that “disobedience menaces the legal system . . . [because] flouting the system’s authority . . . incit[es] further lawbreaking.”
And the seriousness of the problem escalates when the defiance is widespread.
There is a reason that the era of Prohibition coincided with the heyday of Al Capone’s Chicago mob, and it isn’t only that he bootlegged liquor. It’s also that 1919’s 18th Amendment forbade behavior that huge swaths of America would not give up.
The resulting general disregard for the ban promoted a broader disrespect for legal authority.
As the criminal behavior in the 1920s showed, serious corrosion of law and order is most significant when multitudes engage in outlawed behavior because they crave or need what was banned. The late Columbia University Philosophy Professor Charles Frankel once put it this way: “During Prohibition, a large number of respectable, conservative Americans dutifully broke the law in defense of what they regarded as an inalienable human right.”
As Frankel indicated, the importance of the need is a huge factor in the decision to stand up to society’s rules. Bans on women’s reproductive rights and severe restrictions on them in roughly half the states are the Prohibition of modern-day America.
Thousands and thousands of pregnant women in those states cannot afford a baby or simply know that having one at this time in their lives would harm them, their families, or the child. People know what they need and find a way to get it, whatever the law may say. That is especially where so many others in the same situation have the same need and find a path to fulfill it.
That could be travel to another state, including to a recreational vehicle converted into a mobile abortion clinic and parked across state lines. It could be finding a physician willing to risk her own career and freedom to ensure her patient’s right to choose.
In a remarkable development, the American Medical Association has “adopted new ethical guidance explicitly allowing physicians to perform the procedure in keeping with “good medical practice” even in states that ban it.”
America’s premier medical organization has in effect approved civil disobedience. It’s hard to imagine a more powerful illustration of established institutions saying that these state laws are due no respect.
The harm done by prohibitions on basic rights is enormous, even without mentioning the numbers of desperate women who will look for back-alley abortions that were common 50 years ago before Roe v. Wade. In those years, thousands of women had their reproductive health damaged or their lives lost.
Women’s rights advocates aim to keep that history from repeating. They were successful in all six states where abortion rights were on the ballot. There are 10 more states with citizen’s right to initiative—the power to put legislation on the ballot—and they include Missouri and Ohio.
Kentucky Supreme Court Deputy Chief Justice Lisabeth Hughes called the ballot initiative “the purest form of democracy.” She made that statement in a hearing in an action by pro-choice activists to invalidate the state legislature’s ban on abortion as invalid under the Kentucky constitution. Justice Hughes suggested that in ruling, the court could consider voters’ November 8 ballot rejection of a ballot measure to adopt a constitutional amendment banning abortion.
Litigation like that before the Kentucky court is the other main strategy of pro-abortion groups. They have filed 33 similar suits in 19 states.
There’s one additional approach that helped yield important change in Michigan and Pennsylvania in the wake of Dobbs. Those states’ elections showed that keeping choice alive is a political issue in state legislative elections that can flip which party controls one or both of a legislature’s houses.
That strategy helps engage citizens. That engagement is needed to overturn more abortion bans and enact more protections.
If activists succeed in doing so, they will achieve something else important. They will serve the rule of law by helping to avoid the widespread disobedience that threatens it.
