The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.
– Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade”, North Carolina Law Review, 1985
A libertarian who actually cares about “unborn babies” is not a “right libertarian”, advocating for special rules that favor some “unborn babies”: he’s a libertarian who’s spending his time and money improving the lives of these unborn babies, by supporting their teen or destitute mothers, adopting one such baby, educating potential parents to avoid unwanted pregnancies, etc.
– François-René Rideau, “‘Right-’ and ‘Left-’ Libertarians are (oxy)morons”
You know, someday, we’re gonna get enough people on the Supreme Court to change that law.
– A character in Seinfeld, about Roe v. Wade, 28 years ago
Abortion is one of those difficult questions for political philosophy, as it’s not so much about rights as it is about the very definition of who has rights. If the status of sentient, rights-bearing human being begins at birth, abortion must be permitted up until birth. If it begins at conception, then the prohibition of abortion merely repeats that of murder.1
Neither philosophy nor biology, so far, appear to have solved the question in a satisfactory manner. Religion has answers, but they only convince the believers.2
The failure of judicial intervention
To solve it by a highly politicized judiciary did not seem like a good idea already to Ruth Bader Ginsburg 12 years after Roe v. Wade, but 49 years later it becomes obvious: Roe v. Wade failed as of today, while the topic remains more divisive than ever.
If the preservation of a right must rely on a fragile majority of a group of nine people, depending on voting calendars or the unfortunate passing away of one of them, elected for life by a system which itself relies on temporary majorities according to arbitrary rules decided by a few men centuries ago, then perhaps one should question the system itself.3
For decades, lobbies from both sides have been trying to influence the composition of the Supreme Court, spending amounts by the dozens of millions:
The battle may near $40 million in spending and will help define the end of the presidential race, even if Democrats are unlikely to be able to stop the Supreme Court confirmation.
– Political Groups Begin Dueling Over Barrett in a Costly Clash
Ironically, planes full of pro-abortion women have been flying regularly to Washington D.C. in order to protest against the risk of a political majority which could end Roe v. Wade (as of today: in vain), as this would imply that, were they to become pregnant, without wishing to be pregnant, in one of the States where abortion would be illegal, and decided to have an abortion nonetheless, they would then... need to fly to another state.4
The failure of voting
Indeed, Roe v. Wade had only forbidden to the States of the Federation to prohibit abortion. Without Roe v. Wade, the legal status of abortion depends on the political decisions of each of the fifty states – which are all democracies, with women having the right to vote, and women being the majority.
If politics were the solution, why not, then, try to convince one’s neighbors of one’s opinions, instead of hoping to overrule them by a decision forced upon them by the federal government?
Of course, one can naturally wish for one’s chosen state of residence to adapt to one’s preferences in matters of legislation, and not the other way around (“voting with your feet” by moving in another state).
The failure of lobbying
But still: in 49 years, if that goal was not achieved through state laws (or indeed, an actual, stable, federal law or amendment?), was there really nothing else that could have been done?
Social progress, educational awareness, parental advices and personal choices, minimizing the risk of needing abortion in the first place? In 49 years, we’re talking about several generations: the women concerned about Roe v. Wade today are not the same ones as in 1973.
The time and the millions spent in political activism, could it not have been better used, over half a century of technological progress, in research of better contraception means? In funds of financial support ensuring access to abortion, by travelling to other states if needed? Or even: in financial support for the pregnant women to not need abortion in the first place, if their financial situation was the reason?
Same question, of course, for the other side: if the goal were to reduce the number of abortions, was there really nothing else to do but 49 years of lobbying? Could the money and energy not have been used instead, likewise, on contraception research, financial support for renouncing abortion, enhancing adoption possibilities, or even anti-abortion advertising?
The failure of control
Indeed, if the goal is to discourage abortion, let us not forget that any law is but one imperfect means (some laws are even clearly counter-productive, making worse any issue they intended to solve), inefficient and with unintended consequences (“Evidence shows that restricting access to abortions does not reduce the number of abortions”).
Illegal abortion, whether at state or country level, does not make abortions disappear. There can be illegal abortions and women and doctors fined or jailed instead of saved fetuses – or simply, more trips to other states or countries. Controlling miscarriages or regulating abortion means as simple as abortion pills would be either unrealistic or totalitarian, or both.
Abortion is but a primitive solution to an old problem: surely it is not an ideal solution.5 Forcing someone to continue an unwanted pregnancy is not pretty either. Besides the obvious coercion involved, the more one thinks of abortion as murder, the less that solution makes sense, either: if abortion is murder, then surely forcing someone intent on committing it to carry the potential victim, and expect them to act responsibly towards it, is a strange and abhorrent idea.
The failure of politics...
Government cannot create anything; its orders cannot even evict anything from the world of reality, but they can evict from the world of the permissible. Government cannot make man richer, but it can make him poorer.
– Ludwig von Mises
Politics is a negative sum game: all lose. It is therefore the worst and the least enduring solution for any issue that can be solved differently.
Resources spent on politics are a sheer loss: one side spends half a century fighting to overturn a ruling, the other one half a century to defend it. And now, switch the roles, and redo the same for the next fifty years? To the primitive solutions we can add a third one: spend our days debating it forever, distracted by politics, like the Ancients.
Meanwhile, of couse, we will not have moved one inch closer to the real goals and any real solutions. Political discussion is sheer loss for a problem that can be solved differently. The resources wasted on lobbying on this particular issue are but one aspect of a more general, graver, twofold problem: governments divert resources from production to destruction, and governments hamper technological progress.
... and the solution is technology
Can’t we do better, in 2022, than either of these primitive solutions?
Any sufficiently advanced technology is indistinguishable from magic.
If easy solutions are not affordable for everyone, it is because governments make us much poorer than we ought to be. If a magical solution to the abortion problem is not available yet, it is simply that our technology is not advanced enough. If our technology is not advanced enough, in 2022, it is because politics and governments have been impoverishing and slowing us down for centuries.
If the State had been abolished a century ago, we’d all have robots and summer homes in the Asteroid belt.
– Samuel Edward Konkin III
... and magical solutions for Covid or any other pandemic. And magical, affordable, safe, widespread and morally satisfactory solutions for abortion. And and and...
If you want to win against politics, you cannot play the game and win, you need to change the game. And that’s technology.
– François-René Rideau, “Passivism: To Save the World, Start with Yourself”