I am in the state of Virginia where recently there was a short lived controversy of a proposed new act to repeal laws involving abortion up to (and including) the date of birth.
I initially approved of the proposed change, but my reason was that I didn’t think the law was necessary. I would prefer that we do what we can to discourage the practice of late term abortion (if not all abortion): there is humanity in the unborn child that deserves some protection. However, I am increasingly dissatisfied with the idea that laws with penalties is the best to discourage some undesired behavior. Too often, we act as if laws are the only way to discourage such behavior. Given the tools we have available today, there should be other ways to achieve the goal rather than threatening criminal prosecution with the result of penalties of incarceration or fines.
In the case of late term abortions, it seems to be a relatively infrequent occurrence as most abortions will be performed much earlier, as being easier and quickly relieves the distress of the pregnant. Nonetheless, I realize late term abortions are frequent enough to be a concern, and perhaps too frequent to be fully justified (if it can be justified at all) as a relief to the health of the mother. Even granting that, it seems to me that even with the law in place, most illegal abortions are not prosecuted, and the few that do rarely result in convictions. For the woman involved, the conditions involved will often encourage leniency by either the prosecutor or the jury. For the physician involved, there is a deference to his judgement in any particular case: a prosecution of a doctor would have to show a long lasting and recurring pattern of behavior that would remove any doubt that he is acting criminally. In either case, the prosecution and penalization for such crimes would be so rare as to suggest selective prosecution for public opinion gain against some defendant whose criminality will be exaggerated in service of that show trial.
Criminalizing late term abortions have not eliminated the practice and the law breakers are rarely prosecuted and convicted. In this context, I find some appeal to getting rid of the law. I support the concept of society strongly discouraging abortion and providing consultation and support with a bias toward delivering a healthy child.
Given the tools available to this modern society, we should have better ways to accomplish this discouragement. One such tool is the Internet with easy access to information about the development of the child as well as the very detailed descriptions of the abortion process. The decline in rate of abortions provides at least some reason to suspect that these tools are effective.
Criminal laws may be working against our goals. We may see even fewer late term abortions if we decriminalize it. Getting this topic out of legal and political debates will further privatize the individual considerations of alternatives: their decision will no longer have political implications.
I am sympathetic to Governor Northam’s early support for the repeal act. In hindsight, he could have approached his support differently, although I don’t really fault him for his defense of his support. An alternative defense could have been that the law was unnecessary and was in fact counter productive by politicizing a difficult period for the woman considering her choices. With the law in place, we are not really going to be prosecuting most of the late term abortions, and we are very unlikely to convict and penalize either the woman or the doctor. Since the original introduction of such laws, we have as a society acquired more effective ways to discourage the practice, and to encourage women to continue their pregnancy.
The case of abortion is just an example of my broader concern about neglecting modern options to things we previously addressed through criminal codes. In particular, the modern availability of information, and in particular the technology permitting rapid delivery of information to individuals, offers an alternative method to influence the population.
Laws were very useful in the past as a simple way to inform the population. The detailed information accessible only to a few people were condensed into simple laws of what is disallowed. Reducing complex topics to a simple prohibition of certain behaviors is an effective way to communicate some preference to a population that is illiterate or that lacks the resources to access the supporting information. However, in my eyes, the reduction of a complex topic into a simple prohibition seems to be a very coarse over-simplification, and such over-simplification runs the real risk of unintended adverse consequences.
Today, the general population has access to technology that can connect them to relevant information that is both detailed and yet delivered in a manner that is easy to comprehend: through videos, animated or interactive graphics, or clear narration. Accessing the relevant information, people can conclude on their own the best option, and very often that individual decision will be consistent with society’s consensus view on the topic.
I question the necessity of the majority of the laws and regulations that govern us as individuals or as collectives. The intentions of the laws may be laudable, but laws are not the only instrument we have available to realize our goals. Modern information instruments have some effectiveness, and their effectiveness may be enhanced in the absence of legal prohibitions or mandates.
The advances of the past couple decades have greatly empowered people to access information. The modern methods of presenting detailed information encourage people to seek out the relevant information to their conditions. We are approaching a time where these modern technologies can replace the primary goals for the archaic notion of laws of prohibitions and mandates.
In many areas, I think we are already there.
Consider the times when many of our laws were first enacted. At that time, what other method did government have to convey to people the best way to act given knowledge available at time? In most cases, at the time it was impractical to inform the general population of the information that backed up the case to support the law’s commandments. The best way to communicate the information would have been to communicate simple commandments.
For sake of argument, I assume these laws to be rationally decided based on evidence that was credible to a consensus of those who could review that, and those reviewers were representatives of the population. At the time, the most practical way to address complex topics was through representatives, directly elected or appointed to special bureaucracies, who would review the information that was inaccessible to the general population. If these reviewers were truly representative of the general population, then it seems to me that once that population had the means to practically access and interpret this information themselves, they conclude upon some action that the majority would accept as acting reasonably.
The recent example of the attempted repeal of laws prohibiting abortion illustrates a more fundamental barrier to making progress that takes advantage of the modern reality. As in this example, any attempt to remove an obsolete law has to overcome the objections that such an attempt condones the behavior that is no longer legally prohibited. Missing from this argument is that there is the behavior itself is effectively policed through other means that are far superior to old-fashioned legal commandments. With such policing available, there is no longer a need to fear that a law’s repeal would condone an unacceptable behavior. The missing counter-argument is a demand for proof that removing of a law would encourage the behavior we want to prevent.
There is also the risk of unnecessary laws being used for oppressive purposes. In recent years, we have seen many examples of prosecutorial discretion. This term comes up concerning crimes that are often dismissed from prosecution due to the crime itself no longer being a major priority, but are instead selectively enforced as a means to convict someone who cannot be convicted on some other offense. Having unnecessary laws on the books gives the state the power to prosecute an undesirable person rather than an undesirable offense. The convicted may get the desired penalty for some unrelated offense that could not have resulted in a conviction. That unrelated offense may merely be unpopular but otherwise legal. The conviction may satisfy some public demand for retribution, but it is not justice when most cases of such a law being transgressed never get prosecuted in the first place.
There is some appeal in the argument that a repeal of a law will effectively condone the behavior that was prohibit. This argument masks a more sinister justification that removing a law will reduce to options of prosecuting a person who cannot be convicted of some unrelated behavior that may not even be illegal though despised. These laws are convenient for selective enforcement for individuals that for some reason earned the ire of needing some punishment. In that case, it would be better if we would introduce new laws to address this new concern rather than selectively prosecuting an unrelated but conveniently coincidental offense.
There are many similar laws that are largely outdated by modern methods of encouraging desired behavior. These laws are effective to serve purposes completely unrelated to the original rationale of the law. These laws are convenient to address individuals or groups that for whatever reasons are behaving in some undesired way, but that way is not itself illegal. The convenience of these laws is that the population does not mind the prosecutorial discretion to not pursue most infractions of the law so long as the infraction doesn’t bother anyone. Essentially, having such rarely enforced laws available grants a law-making role to the prosecutor: outlawing some otherwise legal behavior by taking advantage of some other law that otherwise would not have been prosecuted.
Proposals to repeal of old laws have a legitimate demand for proof that the law itself is still needed. Accepting the prohibited practice as abhorrent, does the law actually continue to reduce the occurrence of that practice, and would its appeal encourage an increase in this practice? Are there more recent innovations in society that are equally effective at discouraging this abhorrent practice? What is the current practical justification of continuing a law that was useful in the past? And is it worth the risk of prosecutorial abuse to retain having in effect a law that is rarely prosecuted and difficult to convict except for the least sympathetic accused.
This is consistent with my earlier writing on this blog about reinventing a modern government with a priority on data. I described such a government as having a very few law enforced at any time, and that those laws would only be enforced during a short period when the targeted behavior presents some acute urgency. My presumption is that collective behavior will eventually change to conform to a law. In that case, there is a need to retire the law in order to observe the new behavior of the population. I believe the new behavior will continue to be consistent with the now-expired law, but there will be some other behavior that will present itself as needing urgent attention.
We are living at the cusp of a new method of government. Government by data is different from democratic government, and I suspect it will be better equipped to govern a modern society. Government by data requires collection of observations of actual modern behavior unbiased by traditional interpretations and one of the sources of such bias is the retention of obsolete laws. We have always introduced new laws to address some immediate concern. We now live in an era where we have the option to retire old laws to confirm that that earlier concern is no longer a problem. Restricting the number of laws enforced gives us the best data about what is most important today. Also such restraint on number of effective laws reduces the chances of picking up unnatural behaviors of people disobeying an obsolete law in order to address some new problem. In that case, we need to know what that new problem is instead of wasting energy on strengthening the enforcement of a law that has outlived its utility.