How Is It That Abortions Increased Since the Supreme Court Restricted Them with Dobbs?

Last year, the Supreme Court ruled in Dobbs v. Jackson Women's Health Organization conferred that abortion is not a constitutional right. The Dobbs case effectively reversed Roe v. Wade, which meant that the question of abortion's legality has since been determined by the states. The anti-abortion side thought of it as a win for fetuses everywhere and an affirmation of life over death. The pro-abortion side lamented because they viewed it as an essential part of reproductive health being eroded. Regardless of which side of the abortion debate you are on, it seemed that this court case would have resulted in fewer abortions. 

It makes economic sense that there would be fewer abortions. When you legalize something, you get more of it. When you ban something, you get less of it. In states where abortions have been limited or altogether illegal, it becomes harder to procure an abortion. Roe was lax abortion law to begin with, so it makes sense that Dobbs would definitionally be more restrictive. In May 2022, I wrote a piece about a month before the Dobbs ruling about what would happen if Roe were reversed. I highlighted some abortion projections in the event of a Roe reversal, which predicted fewer abortions. I then walked through the intuition of why the number of abortions would go down, but more modestly than many on the pro-abortion side thought. My reasons ranged from the inelastic demand for abortion services to such workarounds as traveling to another state or the increased prevalence of abortion pills. 

Regardless of the magnitude, I was expecting that the number of abortions would have decreased in a post-Roe America. In spite of best predictions, the unpredictable happened since Dobbs became law: the number of abortions increased. Last Thursday, the pro-abortion Guttmacher Institute released a new dashboard showing monthly abortion data. In the dashboard, it shows that the number of abortions in the first half of 2020 were 465,000. For the first half of 2023, that figure was 511,000. What that means is that 46,000 abortions were performed in the first half of 2023 than in the first half of 2020.  

Given the economics of bans, this finding is perplexing at first glance. An economic ban restricts supply, which means fewer goods or services. Punishments for violating a ban deter some, whereas others are deterred by the cost and/or travel to another state where abortion services are legal. Especially since abortion rates were declining (see Pew chart below) in large part due to contraceptive availability, it makes me all the more curious about this uptick in abortion services. 

That is the catch with counterintuitive realities. I am fond of saying that something is only counterintuitive because we do not understand it. By digging deeper, we can make sense of the paradox that lays before us. Once the logic and understanding is laid out, it ceases to be counterintuitive. Here are a few theories as to why there was such a difference between 2020 and 2023:

1. COVID lockdowns. This one seems plausible. Shutting down large swathes of the economy resulted in lower consumer spending and lower GDP. If people were cautious to meet up in person, it would stand to reason that this would apply to women seeking abortion providers. However, if we look at the CDC's most recent Abortion Surveillance report (Table 1), we see that abortion services only decreased from 629,898 in 2019 to 620,327 abortions in 2020. It is technically a decrease. However, its lack of statistical significance suggests that lockdowns are likely not the major culprit. 

2. Increased abortion clinics in border states. In response to Dobbs, states with legal abortion opened 16 new abortion clinics. Much of these clinics came into being to absorb patients traveling from states where abortion is illegal. This does not create additional demand nearly as much as it acts an imperfect substitute. Why imperfect? Because there are some women in states where abortion is banned who cannot travel far enough to have the procedure. While there are some women who live in the state where is legal and would have an abortion because there is a closer clinic, it is doubtful that it would cause that much of a shift. Plus, the Guttmacher data show that some of the largest increases come from two non-border states: California and New York.

3. Telehealth and the FDA. In December 2021, the Food and Drug Administration (FDA) allowed for abortion medication to be prescribed via telemedicine. By removing this barrier, the FDA made it easier to access abortion medication, especially for those who lived far away from an abortion clinic or a doctor's office. I was unable to procure market data for abortion pills, but it makes sense that removing such a restriction would increase supply, which would increase the quantity of [chemical] abortions performed. Conversely, this NPR report illustrates some of the legal grey areas that can hinder some of that increase in access.

4. Are more people having sex or getting pregnant? An abortion is not something you can buy en masse and stockpile in your house. It's not even a service you can use frequently, such as Uber, getting a massage, or going for a mani/pedi. You cannot have an abortion if you're simply feeling in the mood. You cannot go up to a cashier and order 20 abortions for yourself in a single day. It does not work like that.

An abortion is a procedure is in response to pregnancy. Pregnancy only happens to women of a certain age who have their eggs fertilized by sperm. It is not something that happens often in life. Most women who get an abortion are having their first abortion (Pew), which indicates how rare of a procedure it is. Abortion is something that cannot be done by anybody. It is something a certain group of people can do under specific circumstances. 

That is why I have to ask if more people are engaging in the act that results in pregnancy. Contraception usage among women has remained steady between 2017 (CDC) and 2022 (KFF). If it declined, I could see how that would cause an uptick in pregnancies, and by extension, abortions. If it were demand-based, you would think that it is because more women are getting pregnant. 

At least for teens, the HHS data show that teen pregnancy has been on the decline. What is interesting is that since 2008, there has been a rising rate of those under 35 who have not had sex in the past year (Institute of Family Studies). 

If that is not interesting enough, a study from the Journal of the American Medical Association shows that the percent of American adults having weekly sex decreased from 60.4 percent in 2000-2002 to 40.7 in 2016-2018 (Ueda et al., 2020). Assuming the aforementioned trends continued or the rates stayed steady, then sexual activity rates would not be an explanation. Neither contraceptive usage rates nor sexual activity frequency explain the rise in abortion services.

5. Is it because fewer people want children? It is true that fewer people want to have children. However, the United States has had a declining birth rate since before Roe v. Wade became law (World Bank). Especially since fewer people are having sex, there would need to be a drastic shift to justify a huge shift in abortion over such a short period of time. 

Conclusion: Such demand-drivers as sexual activity, desire to have children, or contraceptive usage do not seem to be driving abortion services. The border state theory seems to be minimal at best. Lockdowns did not play a big role since the numbers did not greatly vary from before the pandemic. 

If any of the theories make sense, it is the increased prevalence in chemical abortions. The percent of abortions induced by medicine have increased since mifepristone and misoprostol were approved by the FDA in 2001. By 2020, a majority of abortions were reported to be medication-based (see Guttmacher data below). The FDA approving this medication being prescribed in telehealth services served to accelerate the supply of abortion goods and services, thereby increasing the quantity of abortions performed. 

This acts as a reminder that markets are not static and based on one determinant, but rather dynamic systems. There are many moving parts in a given market or in the economy as a whole. That is another discussion for another time about economics. But here is another economic argument to consider. Regardless of whether a ban on abortion exists, there is a demand for abortion services. As I mentioned when writing about a ban on TikTok and a menthol cigarette ban, bans can be circumvented and it is often not easy putting the kibosh on something like abortion. For the anti-abortion/pro-life side, this means that there is a lot more work to be done. For the pro-abortion/pro-choice side, providing abortion services is more complicated, but you should feel some solace knowing that abortion is not going anywhere. If one thing is clear, it is that the abortion debate in this country is far from over.

What Would Happen If Roe v. Wade Were Reversed?

The abortion debate has made the news cycle once more. Last week, Justice Alito's draft opinion on Dobbs v. Jacksons Women's Health Organization was leaked. This case is dealing with whether all pre-viability prohibitions are on abortions are constitutional or not. This opinion is significant not only because it rules that the prohibitions are constitutional, but because it states that Roe v. Wade and Planned Parenthood v. Casey should be reversed. Granted, the draft is not finalized. The majority opinion could end up being narrower than reversing Roe v. Wade. Also, it is not guaranteed that at least four other Justices will sign the opinion. None of this has not stopped political pundits from trying to figure out what would happen if Roe v. Wade were indeed reversed. I am curious as to what would happen, which is why I would like to take a crack at figuring out some possible outcomes here today.   

Impact on Abortion Access

First, let's touch upon how such a ruling would affect abortion access. As frantic as abortion activists have been the past few days, a reversal of Roe v. Wade would not be the end of abortion in the United States. Abortion access would be determined on a state-by-state level. There are 18 states with total or near-total abortion bans. Four states have early-term bans that cover abortions after the sixth week. 

How much will this end up reducing abortion access? Not as much as one would think. In September 2021, Texas had banned abortion with a heartbeat bill. Based on the available data, the ban reduced the abortion rate of Texan women by about 10 percent. What would happen on the national level? One of the amicus briefs filed was by economists in support of the respondents. This amicus brief had calculated that abortion access would be reduced by 14 percent if Roe v. Wade were overturned. Middlebury College economist Caitlin Knowles Myers similarly projected a 14 percent decline. Why are the decreases more modest? 

1. One reason is that there is likely an inelastic demand. In layman's terms, the demand for abortion services is still high enough where people are willing to get on in spite of the restrictions. Even so, there still seems to be at least some effect on abortion services. 
2. Traveling to another state is an option. It is true that those with modest financial means and the furthest to travel will be most impacted (e.g., women in southeastern Texas and Louisiana given the geographical proximity to a location with a clinic). However, that will only deter some women from traveling across state lines to procure an abortion. 
3. Abortion pills can act as a workaround. Mifeprex has been approved by the FDA since 2000, which can be used up to 70 days of gestation. This is noteworthy considering that 79.3 percent of abortions happen nine weeks or earlier, according to 2019 CDC data. Some states might crack down on this medication crossing state lines, but it is possible that the enforcement prove to be too difficult to enact. 
4. Most states will have legal abortion, which is to say that those living in states with greater restrictions plausibly still have access. 
5. States that are likely to have abortion restrictions if Roe v. Wade is reversed already have low abortion rates in comparison to other states. 

Will abortion rates go down as a result? Almost certainly. After all, bans tend to lead to less consumption of goods and services. However, it is not looking to be the dire number that a number of abortion activists were anticipating. 

  

What Will Be the Economic and Health Impacts?

I do not want to reduce abortion down to an economic issue. There are also ethical and philosophical components to the debate that we need to consider (see my 2019 analysis on those components here). At the same time, determining the economic impacts is not so simple, even though some have tried a cost-benefit analysis (e.g., Nelson, 1993). Not only does it cost to carry a child to term, but it also costs money to raise a child. As such, it should not be a surprise that not having access to an abortion would increase a household's costs. For some, that can translate into considerable financial distress (Miller et al., 2020), which can cause other economic and health issues. This potential for financial distress is pronounced by the fact that nearly half of women who procure an abortion are below the federal poverty line (Guttmacher Institute). At the same time, one has to consider what the expected earnings that would have been accrued if the fetus came to term, became an adult working in the labor market, and the extent to which said life would have contributed to society. 

That segues into the value of life, which is an economic value used to determine the benefit of avoiding a fatality. If the fetus is to have some or any ethical consideration or legal protection, there would need to a value of life applied to the fetus. It depends on what value of life you want to use. For a human being that is born, it depends on who is conducting the valuation and how much the value of life is for a fetus. If the fetus is to viewed as more than a clump of cells and should have partial or full legal protection and ethical consideration, then an abortion is decidedly unhealthy for a fetus since abortion means destroying the fetus' life. It would help tilt the argument in favor of the anti-abortion position. 

If a fetus is to have an economic value of zero or a very low value of life, that would change the calculus dramatically in favor of a pro-abortion position. It would also make the arguments for the women's health, labor force participation, and educational attainment even stronger. Given that 59 percent of those who seek abortions are already mothers, one could argue that forcing the mother to carry could put financial or emotional strain on the children and families they already have. 

I also have concerns about what driving abortions to the underground market would do. When a good a service gets relegated to the black, market, it creates more problems than it solves, whether we are talking about marijuana, prostitution, or donating one's own organs. Pro-abortion activists using depiction that we would return to pre-Roe conditions vis-à-vis coat-hanger abortions is inaccurate and unhelpful, much like it is counterproductive when anti-abortion activists use images of aborted fetuses to make their point. The pro-abortion Guttmacher Institute shows that 54 percent of abortions are done in pill form, a number that is expected to grow.  If a woman can cross state lines to procure a surgical abortion or some Mifeprex, the safety concerns are nowhere near what abortion advocates are making them out to be. 

Another cost that concerns me has to do with enforcement. According to Mayo Clinic, 10 to 20 percent of pregnancies end in miscarriage (also known as spontaneous abortion). If a state is going to take the criminalization of abortion that seriously, does that mean the police force is going to investigate miscarriages as if it were a homicide case? There are questions about how implementation would end up. That does not mean there should not be an effort. We do not say that we should not enforce laws pertaining to murder, sexual assault, fraud, or arson simply because there are enforcement costs and challenges. On the other hand, given the nature of miscarriages, it would arguably be more arduous to prove whether or not it was a bona fide miscarriage or if the abortion were induced by medicine. 

Will Reversing Roe v. Wade Upend Democracy and Privacy Rights? 

"It's the end of the world (or at least, democracy) as we know it." That is the argument I have seen on the Left lately in response to the possible reversal of Roe v. Wade. Washington Post calls it "at odds at democracy." The L.A. Times referred to it as "an emphatic and damaging expression of minority rule." Removing Roe v. Wade is not going to be an end to democracy, but I have a few responses:

• It is not as if the United States were this backwards, authoritarian regime until 1973 and Roe v. Wade magically turned this country into a democratic haven. The United States was functioning as a representative republic prior to Roe v. Wade becoming law. 
• 46 states needed to change their abortion laws as a result of Roe v. Wade. This would imply that these 46 states had more restrictive abortion laws pre-Roe given the permissiveness of Roe. If almost every state had abortion restrictions on some level that were less permissive than what Roe allows, that means the expansion of abortion access allowed by Roe circumvented democratic will.
• The pro-abortion crowd reacts as if reversing Supreme Court decisions is unprecedented or radical. It is not. There have been over 200 instances in which the Supreme Court overturned a previous ruling, most notably when Brown v. Board of Education overturned Plessy v. Ferguson. 
• Far from being minority rule, it would be the first time in about a half-century in which popular majorities determine the scope of abortion policy instead of it being determined by unelected federal judges. Even President Biden acknowledged this by saying that he is not "prepared to leave that [the abortion debate] to the whims of the public at the moment in local areas." In other words, Biden's issue is that such a ruling would mean too much democracy, not too little. 
• While a majority of Americans believe that Roe v. Wade should not be overturned (Politico), a recent poll from YouGov/Economist shows that 64 percent of Americans are okay with abortion being banned after 15 weeks. This 15-week mark also happens to be the line that the Mississippi legislature draws in the Dobbs case. The Dobbs case de facto has majority support from Americans, so how is enforcing a law that a sizable majority is fine with an assault on democracy? 
• Yes, the Republicans played procedural hardball to get a majority of Justices on the Supreme Court that were nominated during Republican presidencies. But if you are going to argue "structural bias in favor of the Republicans," would you not want that to be at the state level instead a more centralized decision-making process dictated by the Republicans?  This is what happens when you give political institutions too much power, but I digress. Additionally, state officials are more responsive to constituents' needs. Referenda, elections for judgeships and governors, not to mention Congressmen, would make the process more democratic. 

Then there are those who think removing Roe v. Wade will go beyond abortion and affect other rights, particularly gay rights. In addition to such an argument violating the slippery slope fallacy, there are a few reasons to assume why this would not spill over into gay rights territory. 

1. Support for same-sex marriage is at a high of 70 percent (Gallup). Unlike Roe v. Wade, the fight for gay rights was much more settled and less divisive in society before the Supreme Court caught up and established the right of same-sex marriage vis-à-vis Obergefell v. Hodges. Gay rights have been established as a societal norm and overturning them would contribute to the erosion of the Court's legitimacy. 
2. Justices Gorsuch and Roberts ruled in favor of the Bostock v. Clayton County, which expanded employment discrimination protections to gay and transgender workers. If the "conservative majority" were hellbent on taking away LGBT rights, they would not have expanded LGBT rights. If anything, they would have attempted to take them away, which leads to my next two points.....
3. The Supreme Court's "conservative majority" had two opportunities to strike down Obergefell v. Hodges (i.e., Pavan v. Smith, 2017; Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018) and it chose not to do so. 
4. Justice Thomas and Alito denied the certiorari in Kim Davis v. David Ermold, which would imply that the two most conservative Justices do not feel like going after gay rights either. 
5. Don't forget about stare decisis, which is the legal doctrine that allows precedent to carry considerable weight in current and future rulings. 
6. Finally, Alito mentions in the leaked draft opinion (p. 5) for Dobbs that abortion is different from intimate sexual relations, contraception, and marriage "because it destroys what those decisions [Roe and Casey] called fetal life," something that was even acknowledged by the plurality in the Casey case (p. 62). Alito emphatically states that "To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion (ibid.)."

If it is not about upending democracy or other de jure rights already previously acknowledged by the Supreme Court, then what is going on? The Wall Street Journal gives a reply: "The Supreme Court's job is to say what the law is, not to be a body of philosopher kings to impose progressive outcomes." The objection to the draft opinion is not about preserving democratic institutions or making sure the people have their say, as previously illustrated. This is an adverse reaction to the fact that many on the Left think that democracy only happens when the outcomes are ones that they favor. That is not how the democratic process works in the United States. I brought this up with the mask mandates, which is that an independent judiciary is necessary to determine what is legal, not what is ethically and morally palatable per se. This leads to a reason I am happy to see the anticipated reversal of Roe v. Wade. Independent of any moral or policy considerations, the constitutional case for Roe v. Wade is unconvincing: 

• It is hard to imagine that the authors of the 14th Amendment thought that the Amendment referred to abortion when three out of four states banned abortion in 1868. There is no historical basis that "liberty" under the 14th Amendment covers pre-quickening abortion. 
• Justice Blackmun, who authored the Roe v. Wade opinion, did not find words or the history of the Constitution, nor did he quote a provision in the Constitution that allows for abortion legalization. 
• There was not even a pretense to examine the intent of the drafters of the Fourteenth Amendment to see if abortion access were implicitly protected by any constitutional provision. In other words, if people want Roe to become national law, pass it through Congress. If abortion activists cannot do that, they need to fight for it on the state level. 
• Justice Ruth Bader Ginsburg, who was a major advocate of abortion access, thought that Roe's "doctoral limbs were too swiftly shaped, [as] experience teaches, may prove unstable." As Ginsburg illustrates, you can believe that abortion access should be [all but] unfettered and that Roe does not provide constitutional basis for said access. From Ginsburg's point of view, the better approach would have been to argue for abortion access using equal protection principles. 
• John Hart Ely, who taught at Yale University, was one of the most oft-cited constitutional law experts of his time. He was in favor of abortion access, but thought that Roe was a bad decision and was not truly constitutional law (Ely, 1973). Ely said that "this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure." In other words, the Burger Court pulled the "right to an abortion" out of thin air. 

For more information on the legal arguments that are being presented to the Supreme Court, you can read the amicus briefs that were filed for the Dobbs v. Jackson Women's Health Organization case here.

Postscript

What would happen if Roe v. Wade ends up being reversed? Not the end of the world. The question of the legality of abortion will go back to the states, just as it was before 1973. Yes, there will be a decline in abortion access because that is a common occurrence when one bans or greatly restricts access a good or service. That number is not projected to be as high as some abortion advocates might fear. There are tradeoffs regarding the economic and health components of the abortion debate. How you feel about the fetus or how you valuate the life of an unborn child will greatly determine whether or not you think the cost of greater abortion restrictions are worth it. As for some of the secondary effects, democracy is not going to end with the reversal of Roe v. Wade. If anything, both revoking a piece of slipshod constitutional law while making the process more democratic by returning it to the state level ought to improve the Court's legitimacy. Additionally, it does not look as if this reversal would likely affect other rights to privacy, particularly that of gay rights. One for thing is for certain: the abortion debate in the United States is far from over. If anything, this rematch is only getting started.

Abortion Advocates Who Abandon "My Body, My Choice" By Favoring Vaccine Mandates Do So For No Good Reason

"My body, my choice." It is a mantra that has defined the modern-day feminist movement, particularly when it has come to the theme of abortion. The idea behind the mantra are the concepts of bodily autonomy and freedom of choice. I thought the idea of bodily autonomy amongst those who are pro-abortion was sacrosanct.....at least until the pandemic came along. What the phrase "my body, my choice" has taken on a different meaning in the political arena. The phrase "my body, my choice" is no longer solely used by the pro-abortion crowd. Those who are anti-mask or anti-vaccination have been using the mantra. This unsurprisingly has been a controversial move. 

The pro-abortion Left is angry at what they view as an appropriation and misuse of the phrase. To quote an article from Vogue, "For Republicans, it's a case of government regulation for thee but not for me." There is overlap between the anti-vaxxers/anti-maskers and those who are anti-abortion. It is inconsistent for those who argued against the "my body, my choice" argument in the abortion debate to use it when it comes to mask mandates or vaccine mandates. 

However, that inconsistency cuts both ways. Many who had been using the argument "my body, my choice" when it came to abortion have abandoned the idea when supporting vaccine mandates. Just to cite some examples, New York City Mayor Bill de Blasio was recently at a pro-abortion rally in which he said, "You cannot have the government attempt to take away your right to control your body. It cannot happen in America. We have to fight it, every one of us." This is the same Mayor de Blasio that had no problem mandating that all private-sector workers be vaccinated by December 27 of this year. 

New York Times columnist Michelle Goldberg opined that abortion restrictions are an "infinitely more invasive form of biopolitical control" than vaccines. Actress Whoopi Goldberg also lost it over the Supreme Court's recent abortion ruling because she takes issue when "you tell me what I need to do with my doctor and my family." Goldberg is also in support of vaccine mandates. I am not saying that everyone on the Left is for abortion and/or vaccine mandates, much like not everyone on the Right is against those policies. What I am saying is that the Left is more likely to be pro-abortion and pro-vaccine mandate.

Someone who is anti-abortion but says "my body, my choice" when arguing against vaccine mandates is just as inconsistent when someone who is pro-abortion abandons the argument "my body, my choice" for vaccine mandates. Which of these is more egregious? I would hazard to guess that a lot of that would depend on where one falls on the political spectrum. In any case, it is safe to say that political expediency plays a larger role than ideological purity or caring about the consistency or coherence of an argument. 

In spite of the political Left and political Right being inconsistent, there seems to be a fair bit of legal precedent established in recent years. The Roe v. Wade case notwithstanding, the Supreme Court has ruled in favor of bodily autonomy in numerous occasions, including the purchase and use of contraceptions (Griswold v. Connecticut), not being subjected to experimental drugs or therapy without one's consent (United States v. Stanley), refusing medical treatment that can save one's life (Cruzan v. Director, Missouri Department of Health), and marrying whichever consenting adult you would like (Loving v. Virginia; Obergefell v. Hodges).   

As nice as it is to cite legal precedent, those who were previously on team "My Body, My Choice" now argue that there are exceptions. A New York Times opinion piece recently made the argument that bodily autonomy is not an absolute. So did the American Civil Liberties Union (ACLU). The ACLU, which has traditionally defended abortion with a bodily autonomy argument, did not find the bodily autonomy argument to be compelling in the case of vaccine mandates. Why? Although the ACLU recognizes a fundamental right to bodily integrity and to make one's own health decisions, the ACLU also argues that it is not an absolute. One's right to do something, or to not do something, should not harm others. Since the ACLU views vaccine mandates as protecting others, it is what the ACLU calls a "justifiable intrusion on autonomy and bodily integrity."

Arguing that freedom has limits is not new, innovative, or radical. When I wrote my 30-plus-paragraph stance a couple years ago on why I am a pro-life/anti-abortion libertarian (with caveats, to be sure), I made that very argument supporting my stance against abortion. I used what is known as the non-aggression axiom. To quote Cato Institute scholar David Boaz, "No one has the right to initiate aggression against the person or property of anyone else." The non-aggression axiom states that as long as you are not directly harming anyone else with your actions, you are free to do what you want with your life. It is an axiom because there are limits, including murder, rape, fraud, and arson. I found that abortion violates the non-aggression axiom because it takes the life of another human being. 

Much like with the numerous pandemic restrictions, "follow the science" does not mean that an experiment is conducted and out pops an answer. What the science does with any health-related policy is that it informs our decision. Beyond that, we make value judgments. In the case of abortion, gestational development informs my view on when life begins. Those who are staunchly pro-abortion draw the line at birth, whereas those who are staunchly anti-abortion draw the line at conception. 

I draw the line at the eight-week mark for two reasons. One, it has developed the human organs and other features that make it discernibly human. Two, that is the point where an embryo becomes a fetus. Abortion is not simply a choice "between a woman and her doctor." If an abortion were more analogous to removing a tumor or a cyst, I would not have a single moral or ethical qualm with abortion. However, that is not the case. The fetus is not a clump of cells or a part of the mother's body. It is a human being with a unique set of human organs and unique DNA.  Whether we decide to give a zygote or a fetus legal standing is a separate consideration from whether they are biologically human beings or not. Again, the science informs our decisions, but does not dictate an answer about abortion policy because there are ethical, moral, and philosophical considerations. 

The same goes for the vaccine mandates. There are other considerations for vaccine mandates aside from the pandemic. There are civil rights, political freedoms, and economic costs to take into account. Also, there are potential side effects from the vaccines. No medical treatment is ever going to be 100 percent. At the same time, vaccines are still very safe and effective, so much so that the risk of getting vaccinated is still significantly smaller than the risk of contracting COVID. For the vast majority of people, the risk of statistically improbable vaccine reactions is outweighed by the risk of contracting COVID and having more than a mild case. Based on available clinical data, I am for people getting vaccinated for COVID. While I am pro-vaccine, I am anti-mandate. 

The explanation for the vaccine mandates, at least the one that President Biden used, is that we need the mandates to protect the vaccinated from the unvaccinated. The vaccines are effective at preventing severe cases of COVID, COVID hospitalizations, and COVID-related deaths. If the vaccines are effective at preventing the nastier parts of contracting COVID, then there is no need to force those who do not want the vaccine. This faulty logic is one of the many reasons I am against the vaccine mandates. 

The ACLU and others who argue for vaccine mandates do so with the assumption that the unvaccinated are much more likely to contribute to the transmission of COVID. If that assumption proves to be false, then the argument for vaccine mandates, and by extension vaccine passports, crumbles. Yes, vaccines are effective at lowering severe COVID cases, COVID-related hospitalizations, and COVID-related deaths. As for COVID transmissions, vaccines are not nearly as effective. 

• Using data from 68 countries and nearly 3,000 U.S. counties, a study from European Journal of Epidemiology found that higher vaccination rates are not associated with lower rates of COVID cases (Subramanian and Kumar, 2021). To quote the researchers, "In fact, the trend line suggests a marginally positive association such that countries with higher percentage of population fully vaccinated have higher COVID-19 cases per 1 million people." 
• In an August 2021 interview with Wolf Blitzer, CDC Director Rachel Walensky admitted that vaccines cannot prevent COVID transmission. 
• An October 2021 article from the renowned Lancet provides insight (Wilder-Smith, 2021), saying that "the vaccine effect on reducing transmission is minimal in the context of delta variant circulation."
• Another Lancet article from October 2021 suggested that those who are vaccinated are just as likely to spread COVID to those in their household as those who are unvaccinated (Singanayagam et al., 2021).
• A preprint case study shows that the vaccinated in Wisconsin have similar viral loads, and that 68 percent of individuals infected despite vaccination tested positive for COVID (Riemersa et al., 2021).
• A case study from a federal prison found no difference in transmission between the vaccinated and unvaccinated, and concluded by warning that public health officials should assume that the vaccinated who become infected are no less infectious (Salvatore et al., 2021).
• Another preprint study showed a modest effect on transmission, but that by three months, the rate of transmission for the vaccinated was comparable to the unvaccinated (Eyre et al., 2021).

The existence of breakthrough cases and how vaccines have little to no impact on transmission rates has important public policy implications. 

1. First and foremost, vaccination status does not indicate whether a person is an active threat as it pertains to COVID. This means that vaccination status should not be used as a determinant to allow or deny access to a service (e.g., restaurant, concerts, entry to a country).  
2. A vaccine mandate is not a form of collective self-defense. There is no way to prove if an individual will be responsible for disease transmission, especially given how commonplace COVID is. Not everyone who is vaccinated develops immunity. As we have seen, it is possible to transmit COVID even when vaccinated. Conversely, some unvaccinated people never become infected. Furthermore, the unvaccinated who have natural immunity seem to have greater immunity than those who only have vaccine immunity. At a minimum, this should help remove stigma against those who do not want get vaccinated.  
3. It illustrates how pointless it is to use COVID cases as a metric for pandemic severity, especially at this stage. Governments should stop using COVID cases as a metric to justify pandemic restrictions, whether that is questionable mask mandates, ineffective travel bans, or lockdowns, the latter of which shows how the cure can be worse than the disease.
4. As safe and effective as COVID vaccines are, the primary benefit incurred is not of a societal nature, but of a personal, individual nature. As such, how we define the policy goal of herd immunity needs to change accordingly. 

I want to be clear that citing the aforementioned studies does not mean people should not get vaccinated. Quite the contrary! People should get vaccinated, even those who have natural immunity because hybrid immunity (the combination of natural immunity and vaccine immunity) provides the greatest protection (e.g., Goldberg et al., 2021; Goel et al., 2021). Even so, we should be honest about what vaccines can and cannot do. Just because vaccines are not particularly effective when it comes to transmission does not negate the fact that vaccines are very effective at preventing severe COVID, COVID-related hospitalizations, and COVID-related deaths. 

However, people should not be mandated to get vaccinated. Part of being free means living with the consequences of your choices, whether those are good or bad choices. People should chose what goes into their bodies, whether we are talking about food, alcohol, nicotine products, or vaccines. I think that remaining unvaccinated is generally ill-advised. At the same time, if we are to remain a free society, then "my body, my choice" (provided that it doesn't violate the non-aggression axiom) needs to mean something. 

In this context, it means that the unvaccinated need to live with the risk and the consequences of remaining unvaccinated. If that means they are more likely to be hospitalized, then so be it. That poor life choice is on them. Or to quote Democratic Governor Jared Polis, "At this point, if you haven't been vaccinated, it's your own darn fault." We do not deny those with unhealthy lifestyles healthcare access. We also do not mandate that people quit smoking and drinking alcohol, exercise three times a week, get at least 7-8 hours of sleep a day, or eat five servings of fruits and vegetables a day. While health is important, we do not treat it as an absolute. We should learn to live with the risk of COVID as humanity has done with other areas of life. 

Vaccine mandates are not a "justifiable intrusion on autonomy and bodily integrity," especially since vaccines do not prevent transmission in any significant way. There is no compelling case in which people should be forced to take a vaccine or lose their jobs and freedoms if they do not comply. At a minimum, I hope the courts see the folly of vaccine mandates and rule against them. Vaccine mandates do not have a place in a free society and they do not have a place in a society that ought to care about the results of scientific findings. 

I Still Consider Myself a Pro-Life Libertarian, But It Comes with Some Major Caveats

Abortion has become a hot-button topic once more. Earlier this month, the state of Georgia passed a heartbeat bill, which restricts abortions to women after six weeks, which is the time when one can often detect a fetus' heartbeat. If that were not restrictive enough, Alabama made abortion a class-A felony. Missouri then signed a bill into law banning abortion beyond eight weeks. Needless to say, my social media feeds flared up with posts on abortion, particularly from those who view abortion as a fundamental right. At first, I tried ignoring the posts. But the more I saw them, the more I wanted to say something. Now I have decided to say something, and that response comes in the form of this piece.

You read the title of this piece, and you are probably asking yourself how I could call myself pro-life while maintaining my libertarianism. After all, libertarianism emphasizes individualism and using freedom to secure life, liberty, and property. Exercising one's free will is essential to libertarianism. Plus, telling someone what they should do with their body prima facie seems to violate an essential libertarian principle of autonomy over the self. How can I advocate for abortion restrictions when it violates what a woman wants to do with her body?

I want to answer that question, but I want to say this first. My experience has been those who self-identify as pro-choice tend not to be concerned with choice on a broader level, but use the label because it's expedient and sounds a lot better than "pro-abortion." If those who self-identify as pro-choice were truly pro-choice, they would be libertarian, or at the very least, they would apply that belief to a lot more than the topic of abortion.

I have advocated for many freedoms and "rights to choose" on this blog, including the freedom to own a firearm, earn a living as a prostitute, marry whatever consenting adult you want (or adults, if that's your thing), sell your kidneys or other organs for money, burn the U.S. flag, practice religion (or not), spend or invest your money as you see fit instead of being coerced into Social Security, say what you want (including freedom of the press and the right to spew hate speech), smoke marijuana, eat and drink whatever you want, or not being coerced to pay for health insurance because of Obamacare.

I believe freedom to choose how to live your life is very important. At the same time, I don't view freedom as an absolute. I view it as axiomatic, which is to say that it is crucial, but nevertheless has limits. With the exception of anarcho-capitalists, libertarians understand these limits, including murder, theft, fraud, rape, arson, and assault. As Cato Institute scholar David Boaz writes in his book Libertarianism, "No one has the right to initiate aggression against the person or property of anyone else (p. 74)." To frame it another way, "you can live your life however you want as long as you are not harming anyone else," or alternatively, "my rights end where yours begin." That is the non-aggression axiom in a nutshell, and it is central to libertarian philosophy.

This brings us to a few key questions. What is the fetus? How do we view the fetus? Is it merely a clump of cells? Is it a full-fledged human being that has or should have rights? Is it part of the mother or is it a separate entity? I don't think the answers to these questions would automatically result in a conclusive decision. Nevertheless, I find that answering these questions informs us and provides a better foundation for a moral or philosophical argument, especially given how morality and philosophy have evolved in the Western world. If it is more analogous to plastic surgery or removing a tumor, then the pro-abortion arguments become more compelling. If it is more analogous to murder or homicide, then the anti-abortion arguments become more compelling.

The Facts of Life: A Biological Look at the Gestational Development
I'm not going to cover the entirety of gestation here, but I will say that those who are against abortion use the line "life begins at conception." This much is biological fact, a fact that 95 percent of a group of 5,502 biologists agreed with (Jacobs, 2018). Biologically speaking, life begins when female and male gametes (sperm and egg) unite, i.e., fertilization or conception. The result of the union is a biologically living, single-cell entity known as a zygote. The zygote possesses DNA from both the father and mother, thereby diminishing the pro-abortion argument of "the fetus is part of the mother." The zygote undergoes miotic divisions and cellular differentiation to turn into an embryo, although one could argue that separate DNA or cellular differentiation does not automatically translate into personhood. During the embryonic stage, the embryo develops a central nervous system, a heart, and most of its organs. After the eighth week of fertilization, the embryo has become a fetus (Merck Manual), and thusly has developed enough of the parts of the body that make it more "distinctively human." These facts about gestation are also acknowledged by Planned Parenthood.

As previously alluded to, the question of "when life begins" is independent of ethical, moral, religious, or political consideration. Even so, the biology helps inform questions of personhood. I will get into where I draw the line momentarily, but what I will say up to now is that biology, more specifically that of embryology and fetology, provide a basis for a pro-life position.

I'm Pro-Life, But.....: Time for Some Nuance
One of the things that frustrates me about the abortion debate, like with so many debates, is that the extremes have a disproportionately loud voice. Based on these loud extremes, you either have to be for abortion in all cases or in no cases. It is easier to have snippy one-liners such as "Abortion is murder" or "My body, my choice" and paint the other side as morally inept while forgetting the multiple facets of the abortion debate. What is interesting is that when looking at Gallup polling on abortion, most Americans do not hold to these extremes, and neither do I. That being said, I would like to tackle some of the nuance I hold that doesn't make "Abortion is murder" my instinctive reaction every time abortion reaches my news feed.

Where to Draw the Line (Pt. 1)? A Word on Gestation: One of the most fundamental questions surrounding the abortion debate is when the entity in question, whether it be the zygote, embryo, or fetus, is granted personhood, and thus should be granted legal protections. For those who are staunchly anti-abortion, the answer is "at conception." For those staunchly pro-abortion, the answer is "at birth". These can be appealing because they are clear-cut stages within human development. In spite of clear-cut distinctions, what is interesting is that most Americans do not fall on either extreme. Sixty percent of Americans think abortion should be legal within the first three months. The support drops to 28 percent in the second trimester, and down to 13 percent percent for the third trimester (Gallup).

For me, my view on the issue is not too far off from most Americans. My view is that the line should be drawn in the first trimester. The trickier part is determining at which point in the gestation period to draw that line. There is some allure to drawing the line at the six-week mark, which is when these new "heartbeat bills" are drawing the line because a heartbeat can be detected by some recently developed technology. There is also some allure to drawing it at the eight-week mark. Why? It's not quite as clear-cut as conception or birth, but it's still based in embryology. One, it has the human organs and other features that make it discernibly human. Two, the embryo has become a fetus at that point, thereby providing a clear-cut stage in gestation.

Embryonic Viability and Miscarriages: I also draw the line towards the end of the first trimester because it addresses another issue that is not discussed often enough in the abortion debate: miscarriages. Miscarriage is another term for "spontaneous abortion," and about 80 percent of these happen in the first trimester. For women who know they are pregnant, about 10 to 15 percent of pregnancies end in miscarriage (March of Dimes). Mayo Clinic recognizes the number is probably higher because most miscarriages happen before the woman knows she is even pregnant. To that point, research finds that anywhere from 40 percent up to 70 percent of embryos fail to develop into a person. The lower probability of viability diminishes the argument of potentiality, something that would not be the case once the embryo becomes a fetus.

The existence of miscarriages can be used for both sides. On the pro-abortion side, it shows that abortions naturally exist, and that conception does not translate into pregnancy. If those who are anti-abortion take the loss of life seriously, they should mourn the millions of lives lost by miscarriage, as well. It is all the more harrowing for an anti-abortion theist to realize that God created a universe in which abortion naturally occurs. An argument for the anti-abortion side is that there is still the reality that a loss and grieving process is felt after a miscarriage. I was reminded of that by an article from the Left-leaning Vox, of all places. This is important because it acts as a reminder that we are dealing with more than a mere clump of cells or "potentiality."

Additional Moral Issues with Certain Pro-Abortion Arguments: While we're discussing the status of the unborn, there are those on the pro-abortion side that argue for abortion based on the idea that the unborn are a "mere clump of cells." There are three arguments used to support that notion that I would like to highlight here. The first is viability, i.e., the fetus cannot live outside of the womb, ergo abortion is justifiable. The second is whether a fetus is wanted or unwanted, i.e., the lack of desire to carry the fetus to term justifies abortion. The third is the Sovereign Zone argument, which manifests itself in such sub-arguments as "My body, my choice," or "As long as it's within my private domain (e.g., my womb, my home), it doesn't matter."

My philosophical issue with using any of these arguments to justify abortion is that they could just as easily be applied to already-born individuals that are deemed unwanted or are as perceived as "not being able to make it on their own" (e.g., infants, the homeless, those who are physically handicapped). This is not to say that those who identify as pro-choice support such practices as infanticide, but rather to illustrate the logical conclusion of these arguments, and thus the moral quandary, when these arguments are applied consistently. To be fair to the pro-choice/pro-abortion side, there are better arguments to be made, as is illustrated below.

Where to Draw the Line (Pt. 2)? Segmentation of Abortions by Gestation Period: Drawing that line between a period after conception and before birth means that there is a period in which there is a certain percentage of abortions with which I would not have a problem. What is that percentage? I decided to find some data that breaks down the number of abortions by week of gestation. The CDC was able to provide me with its figures that it released in November 2018. Where I decide to draw that line makes a significant difference. If I draw it at the six-week mark, like the Georgia heartbeat bill does, it would mean I would be okay with 36.7 percent of abortions. If I go with eight weeks, like the Missouri bill does, it would mean being okay with 65.6 percent of abortions. Even when looking at the more restrictive of the options, it would mean that in practice, I would have to be okay with at least nearly two out of five abortions that are performed, and at most, about two out of three abortions.

Enforcement Concerns and Underground Markets: Especially when discussing bans, a quintessentially libertarian concern is the ability to enforce a ban. Libertarians have argued against the Prohibition [of alcohol], as well against making marijuana illegal, not only because enforcement is difficult, but because there are certain unintended consequences of bans (e.g., black markets, increased crime). The essential libertarian argument about legalization in these cases is "it's not perfect if you make it legal, but there are by far more issues forcing it into the black market and making it illegal." I don't argue that abortion is a victimless crime, but I also would be worried about the consequences of driving women to use abortionists in the black market. I would argue that technology has improved conditions since pre-Roe v. Wade, but I'm also not exactly confident of the conditions of abortions performed in the black market.

Second, I have a concern about the elasticity of demand for abortion. In layman's terms, elasticity is the economic term referring to the change of quantity consumed relative to a price change. I don't live in a world where you think you can get rid of abortion completely, especially if there is a demand for abortion services. If the demand largely holds during an abortion ban, it would mean that all that is being done is driving abortions to less safe conditions. This, of course, would be an economic question to see what the elasticity of abortion historically has been. I would be interested in doing it as a separate blog entry, but for now, let's say driving abortions underground is a legitimate cause for concern, and what I would view as the strongest argument for either keeping the status quo or not making as prohibitive as a full ban.

Then there is the question of what the law would look like if you were to give full personhood to zygotes, embryos, and/or fetuses. Mississippi tried passing a Personhood Amendment in 2011, which would have done exactly that. I had to ask myself what full personhood for zygotes would look like.  Detecting a zygote is much more difficult than detecting an infant. It would have been an enforcement nightmare because it would have affected everything from criminal enforcement and inheritance law to Social Security, welfare benefits, and tax law. Some of these issues could be curtailed by providing partial rights to the unborn, but there is a question of what granting partial or full rights to the unborn would look like in practice.

Exceptions to Allow for Abortion: When debating abortion, there are usually three exceptions that even self-identified pro-life individuals make: rape, incest, and when a fetus is threatening the mother's life. Going back to the Gallup polling, 83 percent are okay with abortion in the first trimester when it threatens the mother's life, and 77 percent for cases of rape and incest. The numbers decrease a bit for third trimester, but still stay above 50 percent.

I am fine with abortion when it threatens the mother's life both because an abortion in that scenario would be a justifiable act of self-defense, and because the loss of only one life is better relatively speaking than the loss of two lives. As for rape and incest, I understand both sides of the argument, but I would have significantly less of an issue with abortion in those instances. For rape, the choice to have a child was forced upon the woman (this scenario is another reason I support emergency contraception). As for incest, there would be a concern about birth defects. Speaking of birth defects, there is also a concern as to whether an abortion would be okay if there were some sort of birth defect. It would depend on the defect. I would have a bigger issue with abortion in the case of Downs' Syndrome (where the individual can lead a full, productive life) than I would with something like Tay Sachs' (where the individual leads an extremely painful life while dying at a young age).

That being said, the reality is that these exceptions are in the minority. Florida is unique in that it actually tracks reasons for having an abortion. When combining physical and emotional health reasons, only 3.4 percent of abortions in Florida were performed for these reasons. One percent were performed for genetic defects, and 0.2 percent for reasons of rape and incest. Yes, Florida is only one state. At the same time, 2004 survey data from the Guttmacher Institute (they unfortunately do not have more recent survey data), which is Planned Parenthood's research arm, helps confirm the notion that abortions performed for such exceptions as rape, incest, and threatening the mother's life are indeed exceptions to the norm.

Personal Responsibility and Birth Control: If it already wasn't made clear, I highly value freedom and the ability to have "life, liberty, pursuit of happiness." One of the arguments for abortion is that a woman has the right to do what she can and cannot do with her body, and as a result, has an absolute right as to whether to carry a child to term. While I can sympathize with that argument more strongly as a libertarian, here is where I still take issue with such an argument.

What is implicit in freedom is that while you are free to make your own choices, you also have to accept the consequences, both good and bad. The biological reality is when a man and women have vaginal intercourse (coitus), there is a real chance that the sexual act will result in pregnancy. As the aforementioned survey data suggest, most abortions are not because an unfortunate situation, such as rape or incest, was forced upon the woman, thereby taking away her choice. In most scenarios, the woman chose to engage in sexual behavior, knowing that there are risks to that behavior. This would mean that the woman knowingly chose to participate in such activity, and as such, should be held accountable for the choice she freely made. From a cultural standpoint, I have concerns about the respectability for life when most abortions are done for convenience's sake. On the other hand, violent crime has declined since Roe v. Wade (another topic for another blog entry), thereby diminishing that argument.

I have a quasi-counterargument against the personal responsibility argument, which is that of birth control. The truth is that birth control helps reduce the abortion rate. Not all places have great access to birth control. In some communities, there is a stigma attached to birth control, which I find so unfortunate that I made an argument in 2014 for subsidizing birth control. Yes, greater birth control creates a social good, including that of a lower abortion rate. From a libertarian viewpoint, I made another argument. There isn't a world in which you have lots or no government. It's a false dichotomy. A desirable and more realistic expectation is what shrinks the size of government. If birth control is readily available, then there would be fewer unintended pregnancies. Fewer unintended pregnancies would mean fewer government expenditures spent on the criminal justice system, means-tested welfare benefits, and a number of other government programs. In short, I would rather have a relatively non-intrusive form of government intervention as opposed to aggrandizing the government in multiple areas. Personally, I wish the staunchly pro-life would stop treating it as if every sperm were sacred, and support birth control so we can continue to lower the abortion rate.

A Word on Being Pro-Life versus Anti-Abortion: Some on the pro-abortion side could criticize me and other individuals that self-identify as pro-life because pro-life views only apply to the issue of abortion. Much like I scrutinized the usage of the "pro-choice" label, I have also scrutinized the "pro-life" label for consistency and fairness. Yes, there are some in the pro-life world that are anti-abortion only. The majority of self-identifying pro-life individuals I have met apply their pro-life values beyond the issue of abortion, myself included. I find myself against the death penalty because I value life. With the exception of self-defense or some other exigent circumstance, I find myself to be against fighting wars on moral grounds.

If we were to talk about being pro-life (instead of "pro-birther"), I think we should remove the red tape so it is easier for adoption to be an option. As previously mentioned, the evidence of birth control and emergency contraception is so strong that I have found an exception to "government shouldn't subsidize that" rule to support access of birth control and emergency contraception for women. I believe that communities and social networks should be more supportive when a woman exercises her choice to carry the child to term. There is also plenty of empirical research showing how more liberalized economies translate to greater economic welfare. As a result, women could have greater access to healthcare, and children can have greater access to education. This is my way of saying that a greater push capitalism has the ability to improve quality of life for all, from womb to tomb.

Postscript

When discussing the abortion issue from a libertarian standpoint, there are two major issues that are in play and in conflict: the importance of freedom and the respect for other individuals in which one does not violate the non-aggression axiom. I was somewhat surprised at survey data that showed a deeper divide in the libertarian world. The issue becomes murkier in the greater picture because there is no agreement in philosophy, religion, or medicine as to when the "right to life" begins. There are multiple points in gestation where one could choose to draw the line. To illustrate that phenomenon, let's look at two religious viewpoints.

The Catholic Church fervently advocates for and protects life at the moment of conception (Catechism, paragraph 2270). Traditional Judaism, on the other hand, has a more nuanced view. I would need an entire blog entry to cover the particulars, but if I had to summarize it succinctly, the unborn within the first forty days is considered "mere water" (Talmud, Yevamot 69b). After 40 days, the fetus is provided with some protections, although the mother's life takes precedence (Talmud, Sanhedrin 57b). Once the fetus has partially emerged from the womb, it is granted full protections under Jewish law (Mishnah, Oholot, 7:6).

I currently do not consider myself a religious Jew, but I would nevertheless like to point out that my view incidentally is not that far off from traditional Judaism: there is a period at the beginning of gestation (i.e., with zygotes and embryos) where I do not have a moral objection with abortion. After a certain period (somewhere around the sixth or eighth week), I have an issue with abortion unless it threatens the mother's life (physically, and to a lesser extent, psychologically) or some other exigent circumstance merits an abortion (e.g., the fetus has Tays-Sachs). In practice, I would be in favor for something more restrictive than Roe v. Wade, but something that would allow for exceptions based on gestation and reason for the abortion. Essentially, I have a view that upsets both extremes in the debate. While my view on abortion comes with nuance, I can state that I have an issue with depriving individuals of "life, liberty, and pursuit of happiness." If I am to take my respect for the autonomy of the individual seriously, I would need to extend that belief to fetuses.

In addition to outlining my position about personhood with regards to gestation, I also have expressed my concerns about enforcement of an abortion ban, my views on personal responsibility with regards to life choices, the role of birth control, and how I view capitalism to be in alignment with being pro-life, all of which adds to my nuanced pro-life view.

Especially in an age of political polarization, it is difficult to sit down with those with whom we disagree and have a discussion, particularly on an issue as controversial as abortion. The controversy is compounded by the fact that there is a fundamental disagreement on the moral or philosophical status of the unborn. I find some solace in survey data showing that most Americans have a similarly nuanced view on the abortion issue, and that it is nowhere as simple as "100% for abortion" or "100% against abortion." I would like to think that most Americans not existing on either extreme would help, but I have more than a feeling that the "silent majority" (or at least the more moderate majority) will be overpowered by those who are loudest.

What Is to Become of Roe v. Wade Post-Kennedy?

Within the past week or so, I have seen articles, analyses, and Facebook postings about Justice Anthony Kennedy's retirement. Many view Justice Kennedy's place on the Supreme Court (SCOTUS) as a way to keep the balance between conservative and liberal elements on the Court. It is widely assumed that President Trump is going to nominate someone more conservative than Justice Kennedy. Political pundits have been pontificating on what Kennedy's retirement means for a number of hot-button issues. One issue caught my eye: Roe v. Wade, the SCOTUS case that established the precedent of a right to an abortion per the Fourteenth Amendment. Normally, I don't like performing such speculation. It's not because I am incapable of making an educated guess because that is well within my capacity. I typically do not like it because, not to be too tautological, speculation is speculative. Educated guesswork is still guesswork. Nevertheless, I have heard so much clamor lately on the issue that I thought I would weigh in with the available time I have.

Before I begin, I want to say this: today's blog entry is not about whether making abortion illegal would be "good public policy." It is also not a normative discussion of whether abortion is morally or personally acceptable. I'm not looking to hash out the abortion debate here. Today, I will cover something more narrow: what will be the likely fate of this hot-button issue now that Justice Kennedy is retiring?

Although I am posting this on Monday, July 9, I am writing this on Sunday, July 8. As of July 8, President Trump had the short list narrowed to three contenders: Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge. Looking at these contenders' records, it is likely that they will be at least as conservative, if not more so, than Justice Kennedy. Even without knowing which individual that President Trump will ultimately select, there is also the assumption that the nominee will make it past the Senate for confirmation.

General Considerations
I think there are three general reasons I am skeptical of downright reversal of Roe v. Wade. I call these "general reasons" because they can also be applied to the speculation of the fate of LGBT rights and affirmative action, as well as any other issues that could potentially be affected by Kennedy's retirement. One is that I am skeptical that the other four conservative-leaning Justices would reverse precedent that has been set. This leads into the second reason, which is that the Court has numerically had a majority of the Justices be Republican-appointed in SCOTUS for the better part of the past four-plus decades. There has been plenty of time to reverse Roe v. Wade, as well as other major Warren-era cases (e.g., Miranda, Brown) and SCOTUS has not done so. The third bit of skepticism is the assumption that the next Justice will be an activist justice with a conservative bent. Justices David Souter and Anthony Kennedy were supposed to be more conservative than they turned out to be. The past is not an indication of the future, I know, but the fact that such a precedence exists should give us at least some pause and not give into worst-case scenario thinking. That being said, let's take a look at the more issue-specific details.

Considerations Specific to Roe v. Wade
The main question being asked is whether Roe v. Wade will be overturned outright. Even assuming that SCOTUS were presented with a case that would challenge Roe v. Wade, it begs the question of what the scope of overturning Roe v. Wade would be. In the most overreaching outcome, SCOTUS could rule that the fetus is a human being with de jure constitutional rights, which would mean a de facto ban on abortion. Although possible, I do not think SCOTUS would hand out that sort of judicial fiat. Given that the Right tends to be about states rights, I would assume that the more likely outcome of overturning Roe v. Wade would be SCOTUS leaving it up to the individual states. According to the Guttmacher Institute, which is Planned Parenthood's research arm, four states have automatic bans in place in the event of Roe v. Wade being overturned; ten states have non-enforceable bans; and seven states have expressed interest in limiting abortion further upon being overturned. Since there is some overlap, the Guttmacher Institute has identified up to 17 states that could severely limit or eliminate abortion upon the reversal of Roe v. Wade. The Center for Reproductive Rights predicts that 23 states would be at "High Risk" if Roe v. Wade were overturned.

I don't rule out Roe v. Wade being overturned. At the same time, I do not consider it an inevitability because it is not the only plausible outcome. The Left-leaning Vox brought in a good analysis from ten legal experts on what is going to happen with abortion in the United States. After reading it, I think that it is more likely that Roe v. Wade will be chipped away at gradually and incrementally. As the Vox brings up in a different article, the pro-life movement has essentially taken that approach for a few years now. Since 2010, there have been 400 laws passed on the state level restricting abortion access to some capacity. Recent polling from the Kaiser Foundation also found that about two-thirds of Americans support Roe v. Wade (although on the other hand, Gallup polling from last month shows that only 28 percent of Americans support abortion in the second trimester or later). As such, I think the more probable outcome is that the pro-life movement will continue with its already-proven strategy of whittling away at Roe v. Wade instead of attacking it outright.

Postscript
I am not 100 percent certain of what the fate of Roe v. Wade will be: only time will tell. There are multiple ways that abortion laws in the United States could play out, but I think it is safe to say that Roe v. Wade is at higher risk than it has ever been. Regardless of where you sit on the abortion debate, keep your eye on what happens on the state level because that will have just as big, if not a bigger role in how abortion access in the United States plays out. Stay tuned.

Why Trump's Anti-Abortion Foreign Aid Executive Order Should Make Pro-Lifers Gag

We're not even done with the first week of the Trump presidency, and Trump is off to the races with his attempt to make America great again. Thanks to expanding executive power over the years, Trump has begun to take full advantage of the executive order. One such executive order that Trump signed earlier this week is commonly known as the "global gag rule" or the "Mexico City Policy," the latter of which comes from the fact that the policy was announced in Mexico City in 1984. Per this primer from the Kaiser Family Foundation, the Mexico City Policy requires foreign NGOs to certify that they will not "perform or actively promote abortion as a method of family planning" with non-U.S. funds as a condition of receiving U.S. global family planning assistance. This is in addition to the already-existing laws saying that U.S. foreign aid cannot directly fund abortions. Since the Reagan administration, the Mexico City Policy has been enacted by a Republican president and immediately rescinded by a Democratic president once the transition of power takes place.

Before jumping into the implications of the executive order, I would briefly like to take a look at the budgetary history. In terms of family planning and reproductive health (FP/RH) funding, the amount allotted has stayed relatively constant in real dollars since the mid-1970s (O'Hanlon, 2009).

While the graph above only goes to 2007, we see that constant funding of FP/RH servies remain up to this day (see below).

In FY 2016, USAID was granted $608 million to provide family planning assistance to developing countries as part of its mission. One argument that can be made in favor of the executive order is that historically speaking, funding hasn't really declined as a result of the Mexico City Policy. If a family planning assistance provider refuses to comply, the funds simply go to another NGO. The historical trend in FP/RH funding illustrates that. However, funding is only a part of the equation.

The purpose of this policy is to not only send a message about the value of life, but also show that taxpayer dollars should not support abortions. It is to show an ideological commitment that the Trump administration does not condone abortion, and is willing to stop abortion. Additionally, money's fungible nature makes it more difficult to determine whether allocated dollars are used for contraceptives or abortion. The Mexico City Policy at least does away with the ambiguity. I will spare us the irony of forcing other countries to encourage more restrictive abortion standards while not addressing those in the United States, but here is the trick question: does the Mexico City Policy actually decrease, let alone stop, abortions?

Just so we're clear, I am a pro-life libertarian, and no, that is not a contradiction in terms. Nevertheless, I am going to be realistic here because I don't believe in some utopia in which abortion would be non-existent, much like I don't think we'll live in a world without poverty or crime anytime soon. Whether we look at countries with restrictive or lax laws on abortion, there is still going to be abortion. From a policy standpoint, we can't ask ourselves if we can have a world without abortion because that's not tenable. Instead, we have to ask ourselves whether we want a world that has more or less abortion. Personally, I would like to see a world with less abortion. With that goal in mind, a major metric of good abortion policy is whether abortion rate declines. I am making the distinction between good intentions and good results here because they are all too often blurred when discussing public policy. I am a fan of public policy that has good results, as opposed to feel-good policy that either does nothing to help or makes the situation worse. I had a similar sentiment a few years back when Mississippi tried passing a personhood amendment that would have considered a zygote as a human being with the exact same rights as an individual already-born. Do pro-lifers care more about feeling good about passing uplifting, but ineffective anti-abortion legislation, or does it feel better to have the abortion rate go down as a result of good policy?

That's what I have to wonder with the Mexico City policy. Ironically enough, allowing for these NGOs to be funded, even in spite of their support for abortion, very well might be keeping abortion rates lower than they would be otherwise. Removing this funding does not simply mean no funding of abortions, but no funding of birth control, maternal care, or HIV testing for high-risk individuals in the developing world. Since the funding would be applied to more compliant NGOs, it is nigh impossible to determine what the net cause of lives saved or lost would be. But we could take a better guess at how it would affect abortion rates.

As you can imagine, there isn't exactly a lot of research on something this obscure. However, we do have a 2011 Stanford University study that shows that while President Bush (43) enacted the Mexico City Policy, the policy caused abortion rates in the sub-Saharan to actually increase (Bendavid et al., 2011)! Tangentially, a study from the International Food Policy Research Institute shows how that Ghana experienced an increase in abortion rates when there was a decrease in FP/RH funding (Jones, 2015).

It would be nice to have more evidence on the effects of the Mexico City Policy, but based on the evidence available, President Trump reenacting the Mexico City Policy was a bad idea. Instead of preventing abortion, we now have a policy that, in all probability, will increase abortion. For someone who truly self-identifies as pro-life, policy that increases abortion rates, regardless of intent, should be disconcerting. Rather than celebrate the executive order, pro-lifers need to realize that Trump has done a disservice to developing countries.