Despicable abortion law in Oklahoma

The Oklahoma legislature has passed a draconian statute that provides for personal details about women who obtain abortions to be placed on line. Much can be said about this despicable and cruel law, all of it in tones of fitting outrage. However, let me use it to illustrate one important, and often neglected point.

Outright criminalisation of a practice is not the only means that the state can use in its efforts to suppress the practice. There are many ways that political power can be used to attack our liberties. In current social circumstances prevailing in Western societies, the criminal law uses punishments that can include the infliction of a range of harms, such as loss of liberty or property, while also expressing public resentment, indignation, reprobation, and disapproval (Joel Feinberg has written well on this). But much the same infliction of harm and officially-sanctioned stigma could be accomplished by means that do not involve criminalisation of an activity or even the criminal justice system as we know it.

Even in current liberal societies, the difference between criminal law and civil law is always arbitrary to some extent, and may not always be of great substance. Modern statutes frequently create civil offences, often applying to corporations or their officers. Although civil laws do not categorise those who breach them as criminals, they, too, can be used to attach a stigma to actions and to individuals, and even to destroy reputations and careers. Think, too, of how we should categorise a provision that provides for mandatory awards of punitive damages in defined circumstances, or such innovations as triple damages in civil claims relating to breaches of certain statutory obligations (in order to discourage law-breaking).

In fact, the state can select many hostile and repressive means to achieve its aims. These include propaganda campaigns that stigmatise certain categories of people and officially-tolerated discrimination against people of whom it disapproves, such as by denying certain categories of people access to government employment. The state requires good justification before it calls upon the power of the state to suppress any form of conduct by any of these means.

The Oklahoma law is clearly intended to intimidate and stigmatise women who have abortions, in an attempt to deter the practice. It is no more acceptable than outright criminalisation of abortion. This action merits our contempt, and the law concerned should be struck down as unconstitutional.