Good lawmaking requires the ability to put yourself in someone else's shoes. John Rawls changed the metaphor a bit, saying we need to make laws as if we didn't know whose shoes we'd be wearing (he calls his concept the veil of ignorance). Either way, South Dakota's new anti-abortion law, House Bill 1217, fails this test of good lawmaking.
It would be easy for me to say a 72-hour waiting period and mandatory persuasion sessions with an anti-abortion activist wouldn't affect me, even if I were in the shoes of a woman with an unplanned pregnancy. That's what I'm betting the supporters, male and female, of this new law would say: they find abortion so objectionable that they would never consider it. Or, like Leslee Unruh, they have been in those shoes, have chosen abortion, but now, in a triumph of projection over imagination, believe that every woman will come to exactly the same cconclusion, that she was misled, duped, or coerced into making a tragic, regrettable decision.
Supporters of HB 1217 also fail to imagine themselves in the shoes of a rape victim bearing a fetus conceived in violence, or a wife coerced into pregnancy by an abusive husband, or a newly pregnant woman with a life-threatening medical condition. We all do a poor job of imagining ourselves in grave situations (have you updated your will lately?). It's hard to overcome the "it couldn't happen to me" mindset until you're picking through the wreckage. Far too many supporters of HB 1217 fail to imagine the reality of unwanted pregnancy in the midst of oppressive relationships or health problems and hide behind the tidy moral absolutes of their lawmaking.
But let's really swap shoes. South Dakota is currently governed by a majority of lawmakers who believe the state has an interest in pregnancy so compelling that it can lay significant burdens on a woman considering ending her pregnancy. But suppose the political landscape changed. Go beyond imagining that people get so mad next year that they elect a majority of Democrats and Angie Buhl replaces Russell Olson as Senate Majority Leader (oh my, let me catch my breath!).
Suppose the economy doesn't recover. Suppose oil does get scarce, and Tony Amert and the School of Mines don't invent cold fusion. Suppose climate change kicks in and the Dust Bowl or New Lake Agassiz wipes out great swaths of American cropland.
And suppose a majority of lawmakers decide that the necessary response to the new scarcity is Zero Population Growth. The South Dakota Legislature decides it has an interest in deterring pregnancy to ensure the continuation of society. This interest is so compelling that it lays significant burdens on newly pregnant women considering keeping their babies.
Imagine we require you, dear woman who has just missed your period, barfed four mornings in a row, and made your husband leap for joy, to come to a Zero Population Growth clinic for a consultation. We require you to look at graphs of resource depletion and pictures of starving families. We lecture you about selfishness and your responsibility to the community. We warn you how much stress and trauma you will feel bringing a child into an overcrowded world where he or she will stand an increased risk of starvation, crime, and war. We're not forcing you to do anything; we're just helping you, dear woman, make an informed, voluntary decision.
This isn't science fiction. China skipped this gentle step and went straight to forced abortion. Do you want to bind your feet with those shoes?
The precedents we set with our laws can craft very uncomfortable shoes. When we make laws, we must put ourselves in the shoes not only of fellow citizens in different situations in the current political culture, but in the different shoes any of us might wear in a different political culture that could arise with a simple election and use our precedents against us. Trying on those shoes requires imagination and empathy, qualities that did not inform South Dakota's latest anti-abortion law.
Update 2011.03.26 09:47 CDT: Sioux Falls blogger Jennifer Holsen does an adequate job of putting on someone else's shoes.