Perspective
Canute v. The Sea Bruce L. Wilder, MD JD MPH If there is one thing I learned in law school, it is that we cannot always make a law to solve every problem in our society. This thought came to mind after reading articles and letters in the last few issues of the Bulletin on the subject of elective abortion. It is not my place here, or my intent, to engage in the debate about the rightness or wrongness of elective abortion. We have all heard both sides, and I don’t think I can add anything to it that will change anybody’s mind. But we should not conflate that debate with the debate about how we regulate or prohibit elective abortion and the ripple-effects that follow. We should question the view that those who oppose criminal or burdensome civil penalties are “abortion supporters.” The uncertainty among physicians and their patients created by some of the state legislation (or would be created by proposed legislation) that has followed the Dobbs decision cannot simply be brushed aside. In some instances, attempting to change behavior by enacting punitive measures, whether effective or not, may produce a greater harm than it seeks to eliminate. Not true, of course, for most activities we consider criminal. Before the 1973 case of Roe v. Wade, safe abortions were available to 16
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 www.acms.org