Forced Pregnancies Are A Crime

The connection between abortion rates and crime rates is contentious and difficult. Terminating a pregnancy is about to become more so.

I’m a man, writing about abortion. I get how that’s irritating right now.

But I write about crime, and there’s a long conversation in the sociological literature connecting abortion rates to crime rates. With a draft opinion about to allow states to criminalize the termination of a pregnancy, this is the right time to talk about it.

In 2005, the economists Steven Levitt of the University of Chicago and John Donohue of Yale University introduced the issue to public discourse in the book Freakonomics. One of the dirty secrets of criminology has been researchers’ inability to explain why crime began falling in the early 1990s. All of the obvious explanations fail on analysis.

Leavitt and Donohue suggested that legalized abortion reduced the number of children who would have been born under conditions that produced criminals. Count forward 20 years, from the legalization of abortion to 1973 to the peak of American crime rates in 1993 and you start seeing the spot where the absence of 20-year-olds committing crime begins to impact crime.

Children who are born to parents who don’t want them have worse life outcomes, including a higher propensity for committing crime.

Politically, the idea is fairly toxic. Dubner and Leavitt came under withering attack both by economists and politicians. The right saw it as a justification for abortion. The left looked at it as a racist argument for eugenics.

The thing is, they were right.

Subsequent research upheld their argument. Abortion explains at least half of the reduction in crime over the last 30 years. Leavitt suggests it might be as much as 80 percent of the reduction.

When we see kids running around with guns, people start making demands of their parents: why can’t you control your kids? Consider the implications of their research for a second. It suggests that women can often tell when they’re not going to be able to raise a child in a way that produces healthy adults. And now we’re not going to let them do anything about it ahead of time.

In a podcast discussing this, Leavitt said that his research probably shouldn’t change people’s policy positions. After all, if you are pro-life, the policy tradeoff is 5,000 to 10,000 fewer people murdered by the children of women who didn’t want to be forced to carry a baby, against about 700,000 abortions a year. Nonetheless, “if indeed these states are making abortions much harder to get, then our study, our hypothesis unambiguously suggests that there will be an impact on crime in the future,” he said.

“You can imagine that if a state were to really clamp down on abortions, but neighboring states permitted abortion, you would get some of this traveling to an abortion provider, but since that would have a disproportionate effect on low socioeconomic status, you might see the problem that we have identified: that the children that are most at risk because they are unwanted pregnancies would be ones most likely to be born once these restrictions are imposed,” Donohue added.

Someone in Georgia is pregnant today and doesn’t know it.

Sometime in the next four to eight weeks, the United States Supreme Court will almost certainly issue a ruling that overturns Roe v. Wade and Griswold, the controlling precedents establishing a woman’s right to choose an abortion.

And that pregnant woman, who may or may not know she is even pregnant even then, will suddenly have a different set of options that she had presumed were hers today.

Of all the monstrous implications of the draft court ruling leaked to Politico this week, the failure of foresight of justices who even didn’t bother to bake in a warning period stands out to me as especially cruel.

I’m being generous here and assuming incompetence and not malice.

We’re going to hear a lot of legal Latin over the next month or two, like stare decisis, the legal principle that says precedents should stand in the interest of stability. The phrase on my mind is ex post facto: laws cannot be made that retroactively punish behavior. Article 1, Section 10 of the U.S. Constitution explicitly prohibits states from passing ex post facto laws.

The government might make it illegal to sell non-fungible tokens. The law might make your NFTs worthless (well, more worthless). But they couldn’t jail you for selling them last year.

Now think about that in the context of a woman who, today, assumes that she can get a legal abortion nine weeks into an unplanned or catastrophic pregnancy. As written, the ruling would punish her for a pregnancy begun under a different set of rules.

The draft opinion as written takes immediate effect. Twenty-six states have laws on the books that criminalize abortion in various ways. Georgia’s law today allows for abortion up to 20 weeks into a pregnancy, but only because the six-week “heartbeat” law passed in 2019 and signed by Governor Brian Kemp is stayed while being argued in court.

The court has had the common decency and horse sense in past rulings to give people time to adjust. For example, in Brown v. Board of Education – an equally-monumental set of cases – the court provided state attorneys general time to prepare for the legal ramifications of desegregation.

The Supreme Court draft ruling as written, combined with trigger laws in states like Georgia, seems deliberately designed to catch women unprepared. Women with resources will probably adapt. The poor and the abused probably can’t.

About 36,907 women in Georgia obtained an abortion in 2019, according to the CDC. That’s a rate of about 100 every day. All else being equal, on the day this ruling is handed down there will be something like 3,500 to 7,000 women in Georgia who are between five and ten weeks pregnant who would have been seeking to terminate their pregnancy. Without warning, their choice to carry a child or not would have been made by the state because they didn’t have the foresight to see this coming.

Only now, they do. Sort of.

Whoever leaked the draft document issued an unspoken but obvious warning: if you’re pregnant and don’t want to be, act now while there’s time. If you’re not pregnant and don’t want to be, prepare.

Leaking the draft almost certainly has prevented thousands of women from forced pregnancies and births. That’s probably worth losing a law career.

The ruling itself was predictable. I can say that, because I predicted it. The question is what we do about it.

People have begun filling the town squares with rallies downtown in Atlanta, and Decatur, and elsewhere. Strident demands of Democratic legislators have been raised to set aside the filibuster and pass a federal law protecting abortion rights. Stacey Abrams declared that she will shape her campaign for governor around preserving abortion rights as best she can.

I have to ask if Democrats are willing to treat the politics of the moment with the same will to power Republicans used to get us to this place. Four of the five justices making this decision were appointed by presidents with a minority of the popular vote. Two are there solely because of procedural machinations by Sen. Mitch McConnell, wielding senators who themselves represented a minority of American voters.

About 70 percent of Georgians believe Roe v. Wade should stand. But we live in a state with a well-gerrymandered state senate. Even though the electorate is split about 50-50 between Republicans and Democrats, Republicans will reliably hold between 56 and 60 percent of its seats. A repeal of existing law would require political tradecraft unseen in Georgia in 40 years.

This court, borne of a minority of popular support, issues rulings that legalize gerrymandered districts and permits corporations and unaccountable billionaires to spend money on elections. We rail against the attempted coup on January 6, but the court itself upheld a soft coup with Bush v. Gore and has been undermining democracy ever since. It has long aborted its legitimacy.

I believe President Joe Biden should expand the court by at least two seats, reclaiming the judicial authority that was stolen from Barack Obama and mocked by the fast-track appointment of Amy Barrett.

It’s a difficult decision, but one that has to be made quickly. He has no guarantee of holding on to the Senate through the last two years of his term. Biden is in the same position as a woman wrestling with her choices about pregnancy, facing a deadline not of her choosing. Biden must act now while there’s time.