More from John Breen on Stuntz, Skeel, abortion, and history

This is from John Breen: Thanks to Rick Garnett for posting the SSRN links to my two articles, John Paul II, the Structures of Sin and the Limits of Law (forthcoming in the Saint Louis University Law Journal) and Modesty and Moralism: Justice, Prudence and Abortion — A Reply to Skeel & Stuntz (forthcoming in the Harvard Journal of Law & Public Policy). Thanks also to Bill Stuntz for joining the conversation here at MOJ. [With respect to "the consistent lesson of American history, including the history of abortion and abortion law itself"], Bill confines his research regarding the incidence of abortion in the era of criminalization to a single source, namely, Gerald Rosenberg ’s deeply flawed discussion of the subject in his book A Hollow Hope (1991). . . . Bill and David ignore the rich literature that shows that the practice of abortion increased exponentially following the state reform efforts of the late 1960s and early 1970s and the Supreme Court’s decision in Roe v. Wade. As Rick notes in his post, this history is set forth in great detail in Joseph Dellapenna's masterful work, Dispelling the Myths of Abortion History (2006). Although Bill and David ’s article was published prior to Dellapenna’s book, the underlying sources upon which Dellapenna relies were freely available. I review these sources in critiquing Rosenberg’s troubled work and by extension, the Skeel-Stuntz modesty thesis as it applies to abortion. Indeed, Bill and David’s claim that prudence demands that abortion should be left to the influence of cultural norms rather than subject to legal regulation appears to make sense only because they ignore the way in which the law significantly reduced the incidence of abortion in the era prior to Roe. The law was indeed an effective teacher – a role that Bill and David consistently understate in their essay. Bill further states that if “there is ever a genuinely pro-life political majority in the United States . . . [it] should try to use government policies to promote . . . means of encouraging and helping young women in distress, not hammering those who make bad choices.” I agree that the state should help women with unwanted pregnancies in a variety of ways, including the provision of greater social assistance. However, in the second article mentioned above, I show – based on data from other well-developed countries that allocate more resources to such women – that such efforts will likely have only a marginal effect on the incidence of abortion. Bill does not – either in his articles or in his post – provide any reason for believing that pro-life legal efforts need to wait, in sequential fashion, for a moral renovation of the culture to be completed. Instead, the relationship between law and culture is dynamic, mutually informing and reinforcing. Thus, in the papers mentioned above, I argue that the proper strategy for reducing the incidence of abortion requires a multi-faceted approach in which culture and law work in tandem. Indeed, contrary to those who oppose the coercive use of law and those who advocate a strategy of “culture first,” I argue that both culture and law – including the criminal law – have a significant role to play in reducing the frequency of abortion. Here I draw upon the recent historical example of the reduction in drunk-driving fatalities that began in the 1980s. This reduction (from 26,000 in 1982 to 16,000 in 2005) was the result of new laws, stiffer penalties, and more aggressive enforcement, as well as the diffusion of a significant cultural message at the grass-roots level from organizations such a MADD and the like. The data shows that when combined with this cultural message, the law had a significant effect beyond the particular instances in which it was enforced. That is to say, it taught the cultural values that it embodied.