The Third Act of American Prohibition

As you know, the Supreme Court overturned Roe v Wade, effectively giving states the ability to legislate the conditions, if any, under which abortion is legal. Many states had trigger laws in place, meaning that abortion became partially, mostly, or entirely illegal immediately. While some states already had laws in place protecting the right to an abortion, others are expected to pass new legislation restricting abortion access in the near term.

So, to summarize, there is a medical service for which there is significant demand. That demand, at the micro level of an individual consumer, comes with time pressure in a heightened emotional context. The supply of the service will vary geographically. Given the clustering of states that are prohibiting abortion in the south and midwest, there will be considerable heterogeneity in legal abortion access based almost entirely on physical distance and access to transportation.

Advocates for the banning of abortion are aware of this and have responded in some states by adding heavy punishments for aiding and abetting abortion access, some going as far as granting access to civil lawsuits or offering rewards for third-parties who tip off authorities to those who have received an abortion.

Prohibition of a good with strong demand, heterogeneous legal supply, and heavy punishments for those seeking to enable arbitrage across state lines. This is not a new story. First alcohol, then narcotics, now abortion. This might feel different because abortion is a service good, but it’s not. Why?

Because of mifepristone and misoprostol, often referred to as “The abortion pill”:

As it stands, a state cannot ban a drug with FDA approval, but access is nonetheless thin. There will also be, with similarly little doubt, efforts to quickly ban mifepristone and misoprostol, with accompanying heavy punishments. Eleven weeks is a long enough window that it will cover the majority of abortions. It’s small and portable, which means it will be easily transported and resold. It will also remain perfectly legal in a number of states bordering those prohibiting abortion. There will be, with nearly zero doubt, a booming black market in mifepristone and misoprostol within a matter of months.

But this isn’t a medical procedure provided in a fixed building with identifiable practitioners. These will be pills that will be exchanged in school bathrooms and college dorms, purchased by professional women who drove 300 miles in a Lexus and came back with enough to give to their professional friends who want to be proactive and prepared for daughters who may be sexually active. Further, these aren’t addictive products: there won’t be weekly customers whose symptoms will create patterns of consumption and the kinds of collateral damage that attract attention. Passive enforcement of these laws will be highly ineffective.

In some places, enforcement on pill restrictions will simply be weak, meaning anyone whose pregnancy can be terminated in the short run will retain some meaningful access. The price will be elevated like any good where suppliers incur legal risk, which means access to abortion will correlate heavily with income, resources, and social privilege. This will also shift the effective burden of abortion restrictions towards the later term “abortions” that only account for 1.3% of terminated pregnancies, but are more heavily associated with medical emergencies, incomplete miscarriages, and the kinds of pregnancy events associated with trauma and shame (e.g. rape or incest) where a women is not necessarily in a position to take decisive early action. Given that the majority of Americans averse to abortion are principally concerned with late term abortions, but also believe abortion should always be an option when the health of the mother is in jeopardy, it is expecially vexxing that laws that reduce access to early term abortions will increase the previously miniscule demand for late term abortions.

I expect some states will attempt to enforce prohibitions or limitations on mifepristone and misoprostol with a war-on-drugs like zeal. How do you heavily enforce a ban on a small pill that is easily hidden, not regularly used, legally manufactured in other states, and has a viable market with high income individuals? Experience tells us the answer is to dedicate lots of resources while carrying little regard for individual rights or public safety.

Marijuana legalization has spread rapidly across the country. District attorneys are increasingly uninterested in prosecuting minor possession charges of nearly any drug. In 1993 state and local governments spent $15.9 billion on the criminal justice of drug enforcement, $26 billion by 2003. Now it’s probably closer to $40 billion (I couldn’t easily find a good current estimate). That’s a lot of money. That’s a lot of jobs. That’s a lot of government jobs, with government job security, many of whom might be wondering what their job is actually going to be in five years. They needn’t worry. When one prohibition closes a door, a new one opens a window.

Local governments have been seizing property, charging fines and fees, and generally subsidizing their local tax bases on the back of the drug war for decades now. Cracking down on a new banned substance might not work for a variety of reasons already listed, but that doesn’t mean they won’t try, particularly if trying means getting a lot of political attention while hosting photo ops with seized contraband next to local police and publicly shaming perpetrators as unforgivable monsters.

Prohibition of alcohol failed in large part because it made nearly everyone a criminal. Alcohol appealed across every strata of American life. Most Americans had a hidden liquor cabinet, a favored speakeasy, or even a backyard still. That breadth and depth of demand brought tremendous profits to those who could supply it outside of the law and, eventually, tremendous violence from those eager to capture those profits.

Demand for abortion access, whether for discretionary reasons or medical necessity, appears randomly in lives, but those rolls of the dice are inclusive of nearly every woman and every family. With that breadth and depth of demand will come a black market. Possibly even a highly profitable market. Materially profitable for suppliers. Politically profitable for those legislating to suppress it. Budgetarily profitable for those working every day to destroy it. These prohibition rents will appear, they will be fought for, and they will sustain themselves through a process that will destroy lives. Mostly women.

The third act of American Prohibition is here and it will hurt us all. Mostly women.

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