The War On Abortion Is The New War On Drugs

Sensible Medicine is spoiled with great submissions. A challenge we face is needing to pass on articles which are interesting, thoughtful, and well-argued but which fall outside our lane – articles that are not even “medicine adjacent”. This article, the second we have published by Charles Silver, pushes the edge of the envelope. I think there is enough of the intersection of medicine and society for us to publish this, especially as public health and politics seems to be getting more and more intertwined. Please do let us know in the comments if you think this fits with our mission.

Adam Cifu

---

In November of last year, Texas Attorney General Ken Paxton announced that his office helped take down a criminal enterprise that illegally distributed “nearly 70 million opioid pills and over 30 million doses of commonly abused prescription drugs.” The drugs were said to be worth “over $1.3 billion on the black market.”

One month later, Paxton “sued a New York doctor” who allegedly “provid[ed] abortion-inducing drugs to Texas residents in direct violation of state law.” Thus has the War on Abortion (WOA) become the latest front in the War on Drugs (WOD). Although Paxton accused the doctor of committing a civil wrong, not a crime, Texas has criminal prohibitions on the books and, if the flow of abortion pills into the state continues, they are certain to be invoked. The history of the WOD teaches us that when initial efforts fail, drug warriors opt for sterner measures.

I expected the two wars to merge. I am also confident that the WOA/WOD combination will fail, for the same reason the WOD has.

Consider Paxton’s prosecution of the Houston drug ring. The perpetrators flooded the city with 100 million pills before being stopped. The prospect of being arrested did not deter them. Why? Because, given the street value of the drugs, the profits to be made were extraordinary. Profitable opportunities to sell prohibited substances always exist because black markets price in the risk of incarceration. When authorities crack down, street prices rise and the incentive to sell illegally is maintained. Paxton may have helped lock up the bad guys who once supplied Houston’s black market for drugs, but profit-seeking newcomers will replace them, if they haven’t already. In moments of candor, law enforcement officials admit that the WOD is a never-ending game of Whac-a-Mole.

The same market forces also explain why “the cocaine industry … is far bigger and more geographically diverse than at any point in history,” despite the US having plowed more than $1 trillion into the WOD.

Are Texas and other red states willing to spend millions or billions of dollars every year to prevent outsiders from sending abortion drugs to their residents? And are they willing to do so knowing that, despite their efforts, the flow will continue? Market forces will undermine the WOA too. As states crack down on volunteer groups that are currently making abortion medications available, black markets will develop and drug gangs will add these medications to the menu of controlled substances they already import. And if the gangs let the opportunity pass, others will not. It costs little more than $1 to manufacture a combi-pack of mifepristone and misoprostol, and many countries, including major exporters of illegal drugs like India and China, have facilities capable of producing them. The combination of low production costs and high black market prices is certain to encourage smuggling, which will be profitable even if many illegal shipments are interdicted.

Little imagination is needed to see how things will play out. As soon as states started to impose regulations that prevent residents from obtaining abortion drugs lawfully, sellers invented strategies to circumvent them, including mail forwarding schemes and telehealth sessions conducted from parking lots in pro-choice states that border pro-life states. One “investigation found that, for less than $100, anyone can order abortion drugs such as mifepristone and misoprostol online without a prescription.” To make even a dent in the supply, security forces will have to be expanded dramatically.

Abortion drug bans will have terrible collateral consequences too, including increases in crime, destruction of lives and families, institutionalized racism, loss of civil liberties, and mass incarcerations. Substance prohibitions always have these effects.

Perhaps because I am a law professor rather than a philosopher or theologian, I am interested in how things work in the messy and imperfect world we inhabit, not in what would make sense if humans were angels. I am no fan of abortion. I regard it as the worst form of birth control (and am told that many women seeking abortions do too). But I would not make it illegal because I know two things: governments should adopt only policies that can be implemented successfully at reasonable cost; and the strategy of banning activities in which millions of people wish to engage does not fit this description. To the contrary, such prohibitions always cost more than people expect, always have awful side-effects, and always fail, no matter how much money is spent.

At various times in our country’s history, governments have banned gay sex, interracial sex and marriage, disfavored religions, controversial books, alcohol consumption, prostitution, pornography and erotica, suicide, gambling, revealing swimwear, and the use of marijuana, cocaine, heroin, and other substances. Although several of these prohibitions are still on the books, none achieved their goals. Even the strategy of discouraging activities by taxing them can be taken only so far. In California, which taxes marijuana sales, a thriving black market exists because illegal growers who evade the levies can underprice their law-abiding competitors.

For reasons that cultural historians may understand but that I do not, Americans are strongly inclined to criminalize behaviors the majority dislikes. Our country has both the largest population of prison inmates in the world and the highest incarceration rate. Are these numbers justified? Is the average American so much worse than the average Russian that our incarceration rate should be almost double theirs? Are we so much worse than Canadians that we should lock up people six times as often? Or are we imprisoning more people than we should because we impose criminal prohibitions too frequently? To me, the answer is obvious.

The case against criminalizing abortion is straightforward and compelling, and it remains so even if one believes that abortion is murder because life begins at conception. Societies prohibit homicides and punish killers for utilitarian reasons. Murders send shock waves through families and communities, destroy important social and economic arrangements, foster fears, and spark calls for revenge, vendettas, blood feuds, and gang wars. Homicide is a crime because it is incompatible with peaceful social coexistence and economic prosperity.

By contrast, societies can thrive, as many do, while permitting medical abortions, which typically occur in private and have few consequences for anyone other than the women who have them, their partners, and their immediate families. The analogy between homicide and abortion is a false one, whether life begins at conception or not. If the US were to experience 1 million murders in a single year (the actual number is below 20,000), the country would literally be in chaos. But the annual number of abortions has been in that range for years, and the country endures and grows. The animosity blue and red states have for each other poses a far more dire threat to the Union than abortion does.

Although the merger of the WOA and the WOD can still be stopped, the odds are that it will proceed, at least until the cost of policing abortion pill bans exceeds pro-life states’ willingness to pay. Even this barrier may matter little, however, because pro-life voters may convince the federal government to pick up the tab. If that happens, the merger will be complete, and we’ll be stuck with the WOA indefinitely, just like we are stuck with the WOD and other terrible policies.

Charles Silver is a Professor at the School of Law, University of Texas at Austin and an Adjunct Scholar at the Cato Institute.