Many people believe that the American legal system, despite its flaws, is among the greatest in history. That’s very likely true, but it depends on your perspective. Much of what makes it great, in broad terms, is our Constitution, with its inscribed separation of powers among three branches of government: the legislative, executive, and judicial. In theory, these branches impose checks on one another, to prevent the rise of tyranny.
So far, we’ve managed to put proof to this theory since 1778, the year the states ratified the Constitution. Doing things “by the books,” so to speak, when ultimate authority rests with codified law and its arms-length interpretation by unbiased judges, means that justice and equality – not whim and tyranny – will rule the day.
But systems of government that rely heavily on legal authority to organize human conduct, as ours does, will tend naturally to resort to creating more laws to arrive at the desired result.
This doesn’t necessarily make life better.
The criminal law is a great example of over-regulation.
The War on Drugs, and our earlier Prohibition days in the 1920s and early 30s, are perhaps the most infamous examples of trying to legislate our way to a desired result. And, as is often the case when the law attempts to regulate morality and infringes on personal liberty, the result can be tragic. Take, for example, the wayward idea that it’s better to let addicts overdose rather than help them, based on the notion that one type of drug use is a criminal act, as opposed to the use of other drugs like alcohol, tobacco, and opioid-based prescription drugs. (Fortunately, Ohio has taken steps to address this.)
Another example comes by way of a 2011 law that criminalized writing prescriptions for the abortion pill mifepristone. Specifically, the law criminalized prescriptions that went outside FDA protocol.
Ohio lawmakers told doctors how to practice medicine.
You may not believe that doctors who perform abortions “practice medicine” in any traditional sense. Certainly, that’s a fair viewpoint. The maxim “Do no harm” comes to mind. But as Charlotte Alter writes for TIME, the Ohio law made sense on paper – criminalizing doctors who write prescriptions that go outside federal guidelines – until you dig a bit deeper to find an outdated FDA protocol.
It’s clear Ohio lawmakers saw an opportunity.
Because the subject at hand was abortion, lawmakers saw fit to add to the body of criminal law by requiring physicians to treat for abortion based on outdated methods. This both increased the cost and decreased the efficacy of treatment. Yet, in Alter’s words, the “evidence-based medical consensus suggested that a slightly different regimen might be safer, easier and more effective.”
Ohio doctors couldn’t prescribe this regimen for fear of running afoul of criminal law.
Indeed, a recent study published by the Public Library of Science has found that the 2011 law led to worse outcomes. On top of that, it’s likely the law didn’t cause any meaningful decrease in the total number of abortions in Ohio (presuming that was lawmakers’ original intent).
One can make a legitimate argument against abortion, on moral or religious grounds, but less so on the basis of legal authority. We must make room for the idea that more legislation – especially when it takes the form of criminalizing behavior – isn’t always the right answer when it comes to making meaningful changes in society.