Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, October 17, 2008

Positive Incentives and Reducing Abortions -- Responding to Tom Berg

Thanks to Tom for his post responding to Weigel’s article on Obama and abortion, and thanks to all for welcoming me back to MOJ.

First, let me make clear that, as a fundamental matter, I agree with Tom’s basic point, namely, that our system of social assistance to women and families can be a factor in helping to reduce the incidence of abortion.  Indeed, this was one of the points I made in my articles (available here and here) critiquing the Skeel-Stuntz modesty thesis.  Undoubtedly many women would respond to positive financial incentives and so choose to carry their children to term rather than abort them – a point recently given additional support by the Wright & Bailey study (available here) conducted by Catholics in Alliance for the Common Good (a study which I think is flawed, but whose general conclusions are I think sound).  Thus, we should make use of this non-coercive means as part of an overall strategy to reduce abortions.

The Pew study to which Tom cites in his original post indicates what I suspect all of us already knew, namely, that the

United States

is a far more religious nation than other developed countries in the West.  However, whether this means that a more generous set of incentives would substantially decrease the frequency of abortion in this country is, I would say, a matter of conjecture absent additional data.  That is, we would have to know something about the religious identity and level of commitment of women who seek abortions.

While a little is known regarding the former, almost nothing is known about the latter.  That is, a Guttmacher Institute study published in 2002 (available here) indicates that for the year 2000, 42.8% of women over the age of 17 who had abortions identified themselves as Protestant, up from 37.4% in 1994.  (The survey indicates that religious affiliation data was not collected for young women, age 17 and younger, a group that accounts for only 6.5% of all abortions).  Likewise, it states that 27.4% of women receiving abortions in 2000 were Catholic, down from 31.3% in 1994.  What the survey doesn’t show is the susceptibility of these women to the pro-life message when combined with positive incentives.  It would reasonable to expect for this to vary greatly depending on whether the woman actually participated in the life of a congregation or parish as opposed to someone who simply checked a box in response to the survey question.  Still, although we simply don’t know the extent to which the greater popularity of religion in the


would enhance the effectiveness of non-coercive means, this shouldn’t dissuade us from employing them.

At the same time, I believe that it would be wrong to overstate the effectiveness of financial incentives.   Indeed, the point I would hope for everyone to appreciate is that non-coercive means are not a panacea for the plague of abortion.  While financial assistance can help, there is an obvious diminishing return to the use of money where lack of funds isn’t the primary reason behind the abortion.  This would seem to be confirmed by the statistics in the Guttmacher report cited by Weigel (available here).  That is, while the report states that 23% of the women surveyed listed “Can’t afford a baby now” as their most important reason for the abortion, 25% said that the most important reason was that they were “not ready for a child or another child” or that “the timing was wrong” and 19% said that their most important reason was that they had “completed their childbearing or had others depending on them or that their children were grown.”  Plainly, these and other factors listed as important motivations for seeking abortions are problems that money can’t solve.

So by all means, let’s make use of non-coercive, positive incentives to reduce the number of abortions.  But at the end of the day, those who say they support the pro-life cause must come face to face with the uncomfortable fact that the current social science evidence suggests that, in the absence of outright prohibition, somewhere in the neighborhood of 1 million abortions will continue to take place in the U.S. each year.  Given this staggering death toll, does prudence dictate that the criminal law has no role to play in reducing the incidence of abortion – indeed, in building a culture of life?  Do the proponents of non-coercive means who are also opponents of criminal prohibition find 1 million abortions per year acceptable?  If not, what are they willing to do once the laudable effects of positive incentives and cultural messages (within a legal regime that enshrines abortion as a right) are exhausted?

I would argue, as I have elsewhere at greater length, that, although the coercive law likewise has its limitations, it also has a place.  Indeed, it has a significant role to play in the regulation of abortion.  Although enforcement of laws prohibiting abortion did not enjoy perfect compliance (something true of every criminal prohibition) the historical evidence shows that these laws were enormously effective in curbing the incidence of the procedure – both by way of actual enforcement and as a form of cultural pedagogy.

Given the way in which Roe has changed the cultural landscape over the past thirty-five years, obviously a great deal of background work still needs to be done – a national conversation needs to take place – before the law can be employed in this way.  But why would proponents of non-coercive means take this strategy off the table before the conversation has even begun?


Breen, John | Permalink

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