More on Immorality vs. Illegality

In response to my post re-raising Eduardo's questions on the Church's teachings on the legality of abortion and certain abortion-practices, MOJ friend John Breen wrote to me about two recent articles of his that will soon be available on SSRN: John Paul II, the Structure of Sin and the Limits of Law (forthcoming in the St. Louis University Law Journal) and Modesty and Moralism: Justice, Prudence and Abotion - A Reply to Skeel and Stuntz (forthcoming in the Harvard Journal of Law and Publis Policy).  He writes:

"In the latter half of the first piece, I address the historical record regarding the incidence of abortion prior to the state reform efforts in the late 1960s and early 1970s and Roe. Without settling on a definitive number, the available empirical evidence effectively refutes the claims of those who maintain that legalization had no effect on the frequency of the procedure. Indeed, Planned Parenthood's own numbers show that both the abortion ratio (the number of abortions per 100 known pregnancies in a given year) and the abortion rate (the number of women per 1000 between 15-44 years of age having an abortion in a given year) steadily climbed in the years following Roe, and that the actual number of abortions per year likewise steadily increased following Roe, surpassing even the exaggerated estimates of annual abortions prior to Roe advanced by abortion advocates.

"In the second piece I restate some of this critique. Beyond this, however, I also argue against those (including many Catholic commentators) opposed to any use of criminal sanctions in the regulation of abortion. Those who argue for a "culture first" approach also frequently advocate for the use of law in its non-coercive dimension, for a greater allocation of resources directed toward women with unexpected and unwanted pregnancies. Although I support such measures because solidarity demands that we support such women and their children (both born and unborn) I also show that it is unlikely that greater financial resources will have little effect on the incidence of abortion. A comparison of abortion rates and ratios in other developed countries (such as Sweden, Canada, England, and France) that have far more elaborate social service networks, strongly suggests that such measures will have only a marginal effect. Instead, I argue for a multi-faceted approach in which culture and law (including both the criminal law and law in its non-coercive dimensions) are employed in support of unborn human life and pregnant women and mothers.

"As for Eduardo' hypothetical, if true - if law has no effect on the frequency of the practice - it would, I dare say, be the first instance of that in the history of jurisprudence.  Indeed, even the much maligned legal apparatus known as Prohibition was (as modern scholarship conrfirms) was successful in that it significantsly reduced the amount of alcohol consumed by Americans by upwards of 40 percent.  of couse this raises a host of prudential questions: Would a reduced incidence of abortion be worthwhile even though absolute compliance with the law would not be achieved? Accordingly, I take up the subject of prudence and its relationship to justice at length in the second piece."