For an article I was writing a decade ago, I read a lot about Prohibition: both the then-current literature on the subject—the best book, as of then, was David Kyvig’s “Repealing National Prohibition” —and the impressions of people on the ground in the 1920s and early 1930s.
No one knows the precise amount of alcohol consumption in the 1920s, but the trend lines are pretty clear from those bodies of literature. For the first few years after Prohibition was adopted, consumption fell dramatically. Then, beginning around 1923, it started to rise, and rose steadily after that, with the rise continuing after Repeal in 1933.
Imagine graphing those results. Now look at the following graph of abortion rates in the United States since Roe v. Wade:
(Link to the chart: here)
The graph is the mirror image of my hypothetical graph of alcohol consumption in the 1920s and early 1930s. For the first few years after Prohibition, the sale of booze plummeted; for the first few years after Roe, the number of abortions shot up. After that initial reaction, both times, a long-term trend in the opposite direction set in—notwithstanding the law.
What does that mean? Maybe nothing; perhaps this is just an interesting (and speculative, given the absence of hard data about drinking in the 1920s) coincidence. But there are two other possibilities. First, these mirror-image patterns might represent a standard pattern when the law seeks to resolve contentious cultural and moral issues before the culture has resolved those issues: at first, the culture moves in the law’s direction; later, a backlash sets in. The second possibility is more complicated, and seems more plausible to me. Both sides of America’s many culture wars tend to overplay their hands, which in turn tends to produce the opposite of the result they seek. Prohibitionists could have banned liquor and left beer and wine alone, but they insisted on a bone-dry America. Americans weren’t ready for that—so Prohibition unraveled, and soon collapsed. Pro-choice judges and politicians might have settled for legalization of first-trimester abortions with some serious regulation, while leaving the laws governing second- and third-trimester abortions in the hands of state legislators. Instead, Roe itself went farther than that, and the pro-choice movement went farther than Roe; America soon had abortion on demand. Over the course of the last generation, most Americans seem to have concluded that abortion on demand goes too far; the culture has become more pro-life, even as the law remains pro-choice. Ever fewer doctors will perform abortions; in some places, it is substantially more difficult to obtain one now than it was thirty years ago.
What would have happened had Roe come out the other way, leaving abortion bans in place? The steep rise in abortions from 1973 to 1980 probably would have been less steep. On the other hand, we might not have seen the long decline after 1980: the pro-life movement might never have formed, and even if it had, it surely would have lacked the energy and passion that Roe v. Wade gave it. That energy and passion changed minds, which in turn changed behavior. Today’s emerging consensus, which might best be called ambivalent tolerance—abortion is more morally problematic than pro-choice advocates admit and ought to be done sparingly, but should nevertheless remain legal in most cases—might never have emerged. Instead, we might have seen the tolerance without the ambivalence: which is precisely where the culture was heading in January 1973, when the Supreme Court issued its edict.
Similarly, had national Prohibition never happened—had Americans chosen in 1919 and 1920 to leave drinking in the hands of the states—the back-and-forth struggle over drinking would have continued. The outcome of that struggle is of course unknowable, but it’s quite plausible to believe that we would have seen less drinking by, say, 1950 than we actually saw. Perhaps ambivalent tolerance would have become the dominant response to drinking, with some finding the practice morally repugnant and many more having qualms about it, but with large majorities holding that alcohol consumption should remain legal. That cultural posture would have had enormously beneficial consequences: for example, Americans might have been willing to confront the death toll from drunk driving a couple of decades sooner than we did, thereby saving many thousands of lives.
All this is no more than educated guesswork. But that does not make it a meaningless exercise; this is no mere game of what-if history. By and large, Americans believe that law works—that when a legal ban is in place, the banned behavior will diminish sharply; or, when the Supreme Court places its moral imprimatur on some class of conduct, that people will accept the Court’s ruling and act accordingly. Those beliefs are exaggerated at best, and backwards at worst. On the issues that most divide us, Americans like making up our own minds. Once those minds are made up—once a consensus has emerged—legal rules and rights reflecting that consensus might work very well indeed. On the other hand, law may do more harm than good when it seeks to steer or speed up that decisionmaking process.