Canute v. The Sea

those with the resources, and always will be, whether legal or illegal. As a medical student in the pre-Roe years at the Providence (R.I.) Lying-In-Hospital, as it was known at the time, I witnessed the ugly and sometimes tragic side of illegal abortions performed on women desperate enough, for various reasons, who had no such access to safe abortions. It was not always because those women were fine with having an abortion, it was because, rightly or wrongly, they saw the alternative as much worse.

To further complicate matters, the issue of criminalization of abortion has become a political football,1 and I suspect there are more than a few stories about politicians who publicly opposed or oppose abortion but had a different view and/or course of action when faced with a dilemma posed by the prospect of a child that, for any number of reasons, they would rather not see born.

Unfortunately, not just in the case of abortion, but in many situations where we, as a society, look to the law to solve a perceived problem, we also rely on it to the point where we pass up the opportunity to solve it in other ways. We should be mindful of the brief history of prohibition, which began with the ratification of the XVIIIth Amendment in 1919, but because of the unanticipated consequent wave of gun violence and organized crime and its ineffectiveness in achieving the goal of national sobriety, it was repealed with relatively lightning (for a Constitutional Amendment) speed in 1933. We should also consider the failure of the so-called War on Drugs, and the preposterous belief that “Just say No” would actually work, that has contributed to the growth and destructive influence of drug cartels in many nations that supply illegal drugs to Americans. And we should also reflect on the long history of the criminalization of homosexuality (which, only within the last few years has finally almost disappeared, at least in the U.S. Criminalization didn’t work for more complex reasons, but at least decriminalization helped us to somewhat eliminate the devastating effects of public attitudes toward a class of individuals by its declassification as a disease, recognition of same-sex marriage, and generally more widespread (but not complete) acceptance in our society. More recently the wave of state legislation dealing with gender issues, whether well-meaning or not, may have the effect of dehumanizing those among us who are either confused about their gender or who identify as other than what others wish them to be, or who are gender-indeterminate based on their genome or genitalia.2

While the Mississippi statue in the Dobbs case does not criminalize abortion (although it does provide for civil sanctions against a physician under certain circumstances), the effect of the Supreme Court’s decision has been to unleash a raft of legislative proposals in several states, some of which do impose criminal penalties – including for homicide3 – for both patient and physician. Some proposed legislation would also impose criminal penalties for those who assist patients in traveling from states where abortion is illegal to those where it is legal.

It is also of further interest that Ireland, in 2018, was able to enact legislation that legalized abortion in certain cases. It is likely that this would not have happened—even in the presence of a majority favoring it—but for the revelations regarding the disappearing and abused children of Tuam, a scandal that came to light in 2017. More recently, the outgoing prime minister of Scotland apologized for the forced adoptions of children (“domestic supply of infants [for adoption]” anyone?) born to unwed mothers who had little alternative than to bear children under the nation’s abortion laws, and some of whom even wanted to keep their children but weren’t allowed to.4

It is well to remember that although the illegality of abortion (along with the maternal morbidity of carrying a pregnancy to term, and deaths and morbidity that ensued from clandestine and improperly performed abortions) was the norm prior to Roe, it had been seen largely as a civil rights issue.5 But the public debate reached a fever-pitch in Nixon’s campaign for re-election in 1971, fueled by Pat Buchanan, who “set out to attract Democrats to the Republican Party over the issue of abortion, which he called a ‘rising issue and a gut issue with Catholics,’ who tended to vote Democratic.”6 Using the debate about abortion as a political strategy has endured.

The destruction of an otherwise healthy fetus is indeed profoundly disturbing, and I suspect that is so even for the vast majority of people who undergo abortions.

For those folks who truly want to prevent abortion (as opposed to those who use the issue for political or other ends), I submit that the best approach to that goal is to study the nations7 and societies that have much lower abortion rates (even where permitted under the law) and consider factors that contribute, such as sexeducation, availability of contraception,8 safety-nets and support systems for impoverished (especially single) women and work to implement those preventive measures in our society.

King Canute, in the 11th or 12th century, as the legend goes (and details of legends have a way of growing like branches), as a way of proving to his courtiers who believed his power was infinite, that it in fact it was not infinite, staged an event in which he commanded the sea to roll back its tide. Needless to say, he made his point.9

Attempts to use legislation or judge-made law as a substitute for meeting new challenges that arise with increasing knowledge and understanding about ourselves as human beings tend to shift the focus away from finding the optimal way forward. As we continue to learn about ourselves as a species there are bound to be conflicts with established institutions and long-held beliefs about who we are or should be. We should meet those challenges with more circumspection and creativity, and with the hindsight of experience—not just by enacting criminal statues in the hope that we can absolve ourselves from dealing with new realities of a changing society and advances in science and technology.

1. For details on the politicization of abortion see Heather Cox Richardson, Letters from an American, 1/21/23, available athttps:// heathercoxrichardsonvsubstack.com/p/ january-21-2023

2. Marci L. Bowers, State Legislators Have No Role in Trans Health Care, New York Times, 4/3/23, available at https://www.nytimes com/2023/04/01/opinion/transhealthcare-law.html

3. Available at https://trackbill.com/bill/southcarolina-house-general-bill-3549-southcarolina-prenatal-equal-protection-actof-2023/2290084/

4. Jenny Gross, Scotland’s Leader Apologizes for Legacy of Forced Adoptions, New York Times, 3/26/23, available at https://www.nytimes com/2023/03/24/world/europe/ scotland-forced-adoption.html

5. Heather Cox Richardson, HOW THE SOUTH WON THE CIVIL WAR, Oxford University Press, 2020, p. 174

6. See note 1 above

7. Such as The Netherlands, described in Dobbs (597 U.S. ___ 2022, Opinion of the Court, p. 6, and footnote 15) as permitting “abortion-on-demand.”

8. Unfortunately, too often opponents of legal elective abortion are also opponents of contraception.

9. See https://en.wikipedia.org/wiki/King_Canute_ and_the_tide