Some states impose a waiting period on abortion, ranging from 24 to 72 hours. My adopted state of Florida has a 24 hour waiting period. Opponents of these laws claim they are yet another attack on reproductive rights. Proponents claim that the state mandated waiting period is reasonable and will permit women to be informed about the risks of abortion and the condition of the fetus. While the legal aspects of these laws are of considerable interest, I will focus primarily on the moral aspects of the waiting period and the two-visit requirement.
When the law was being considered in Florida, Julie Costas argued in favor of it. She said she had an abortion thirty years previously and that she regretted the decision. Her argument was that, counterfactually, she might have changed her mind if she had received more information (thus supporting the two-visit requirement) and if she had to wait 24 hours (thus supporting the 24-hour requirement). This can be made into a moral argument in favor of such laws. By the state imposing the two-visit requirement and the waiting period, there is a chance that some women might change their minds about an abortion they might later regret. In terms of the moral aspect, the appeal is that the requirements might prevent a future harm, that of regret. It could also be argued that increasing the chance a woman might not get an abortion would be morally good since it would avoid the death of the fetus.
I agree that a person should take time to consider whether to have an abortion. I suspect, but do not know, that even without such laws people put thought into this decision. Obviously, there can be exceptions. There are, after all, people who consistently act without thinking through their actions. While there is a moral obligation to think through morally significant actions, it is not clear that 24 hours (or whatever it might be) is the right waiting time. After all, there needs to be evidence that an extra 24 hours of consideration is likely to result in a better decision.
In terms of the number of visits, that should depend on what the person needs. After all, it is not clear that a second visit would consistently result in more information that one visit would not provide. There are also practical concerns of cost and time. It is reasonable to think that the intent of imposing a second visit is to make abortion harder and more expensive, rather than any concern about extra information.
While people should take time to consider significant decisions and two visits might be a good idea for some people, there is the central issue of whether this is a matter suitable for the coercive power of the state. After all, there are many things people should do that should not be compelled by the state. For example, I think that people should exercise, be polite, be kind and eat healthy. However, I do not think that the state should compel these things. But, of course, there are many things that people should do, and the state justly compels people to do them. These include such things as paying taxes, ensuring that any electrical work you do is up to code, and serving on juries. The issue is whether a state imposed waiting period is justified in a principled way.
The principle I use, which I obviously stole from Mill, is that the use of the compulsive force of the state is justified when it is employed to prevent one person from wrongly harming another. A case can also be made for compelling people to serve the general civil good, such as compelling people to serve on juries and pay a fair share of the taxes. However, compelling people to serve the good is more problematic than compelling people to not do harm.
The principle of harm could, obviously enough, be used to argue against allowing abortion on the grounds that it harms (kills) a living thing. Of course, this is not decisive, since the harms of not having an abortion must also be considered. This principle does not justify the two-visit and 24-hour waiting period requirements. Then again, perhaps it could be argued that they would provide some slight possible protection for the fetus: the woman might change her mind or lack the funds to pay for the two visits. This is too weak to provide a convincing moral reason to have a such a law.
It could be argued that a different version of the principle of harm should be used. To be specific, that a law can be morally justified on the grounds that it would compel a person not to harm herself. This principle can, obviously enough, be justified on utilitarian grounds. Various laws, such as the infamous NYC ban on big sodas, have been passed that aim at protecting a person from self-inflicted harm.
In the case of this bill, the moral reasoning would be that because there is a chance that a woman might change her mind about an abortion and she might later regret, so the state has the right to compel her to have two visits and to wait twenty-four hours (or longer). A rather obvious problem is that it sets a very low bar for the state using its compulsive power: there must only be a chance that a person might change their mind about a legal procedure that they might later regret. This principle would warrant massive state intrusion into the lives of citizens. Sticking with a medical example, people do sometimes regret having elective surgery. So, this principle would warrant the state imposing a waiting period and a two-visit rule. But there would seem to be no reason to stick within the field of medicine. People can regret many decisions, such as buying a car, choosing a college major, accepting a job offer, or moving. Yet it would seem unreasonable to impose a waiting period for such decisions. Looking at it in utilitarian terms, the harms inflicted by such laws (such as the cost of enforcement, the annoyance, and so on) would outweigh the alleged benefits. Especially since a waiting period would not seem to increase the chances of a better decision being made.
What makes more sense is having laws that protect people from decisions made while they are incapable of properly making decisions, such as when intoxicated. So, for example, it is reasonable to have a law that prevents a person from getting married when they are intoxicated. It is also reasonable to have waiting periods that are based on actual need. For example, a waiting period that is needed to complete paperwork or verify a person’s legal identity would be justifiable on practical grounds, assuming the time requirements are legitimate.
Given the above arguments, these laws are morally justified and are an unwarranted intrusion of the state into the lives of citizens. Those who oppose big government and government intrusion should oppose such laws. Those who favor big government “jamming things” should support it.