How Abortion Laws Do and Don\u27t Work

The US Supreme Court appears ready to permit states to re-criminalize abortion. When the “law on the books” changes in the United States, what might the “law on the ground” look like? One answer lies in examining what happens today, in countries with restrictive abortion laws. Israel’s 1977 law bars abortion unless approved by a “pregnancy termination committee.” Drawing on interviews with committee members, lawmakers, advocates and others, this Article presents an ethnographic study of one country’s experience with a law criminalizing abortion.Israel’s approach, limiting abortion access to those with qualifying conditions, is likely to be in play for some U.S. states in the years to come. But the significance of Israel’s experience lies beyond what it teaches us about the choices and challenges surrounding the implementation and enforcement of a restrictive abortion law. It surfaces vital questions about what abortion laws actually accomplish—questions this Article answers by identifying six distinct functions of abortion laws: criminal sanction, market-structuring force, informal adjudicatory process, shame sanction, expressive function, and truce. This Article describes these functions in turn, first considering the ways in which each one manifests in Israel, and then exploring the implications for U.S. states intent on recriminalizing abortion. The upshot is this: each of these functions brings into precise focus the ways in which forthcoming U.S. abortion crimes, on the ground, will necessarily struggle and fail to be seen as legitimate exercises of state authority