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Is Soft Paternalism A Middle Ground On Abortion?

Via Will Saletan, there's a ballot-initiative campaign underway in Missouri to require doctors, before performing an abortion, to administer a psychological evaluation to determine whether the woman seeking the abortion had been pressured to get one. Doctors would have to ask: "Is someone else encouraging you to have this abortion? Do you want this abortion to satisfy your own needs or are you looking to do this to please someone else?" This comes on the heels of the Missouri House of Representatives passing a bill, similar to those on the books in other states, that would require doctors to offer women seeking abortions a chance to view an ultrasound and feel the fetus's heartbeat.

Now, I tend to think these laws are mostly pointless and not likely to have much of an effect one way or the other. I would be inclined to vote against them. But I think it's wrong to argue, as Scott Lemieux does, that they're inherently sexist or condescending. They seem like a relatively simple extension of the theory of government Cass Sunstein and Richard Thaler set out in their new book: here, the government is nudging women to make sure they realize abortion is a complicated moral question and a step not to be taken lightly. Of course there's a degree of paternalism involved--as there is when workers are pushed to save more in their 401(k)s than they ordinarily would--but Sunstein and Thaler make a persuasive case that slight, noncoercive paternalism can frequently lead to better outcomes.

Granted, it's easy to go overboard, and some of the restrictions in this vein--like waiting periods--can be overly burdensome, depending on the specifics. But simply requiring women be offered the chance to view an ultrasound? That seems like an unobtrusive, reasonable way for the state to emphasize the nature of fetal life without constraining choice. This type of paternalism differs from Sunstein and Thaler's other examples in that it only applies to women, but I don't think that makes it, ipso facto, sexist, because the justification for it need not rest on any claim about women being uniquely impetuous. Everyone is impetuous now and then, which is the genesis of the entire Sunstein–Thaler approach. Were men capable of getting pregnant, I suspect this sort of nudge would be even more appropriate.

The problem, of course, is that while soft paternalism on abortion might be attractive as part of a compromise that preserves abortion rights but nudges women away from it, the people pushing initiatives like the one in Missouri mostly just view it as a temporary stop on the way to harder, coercive paternalism down the road. Under those circumstances, soft paternalism becomes far less appealing to liberals. So while in theory there's real potential here for middle ground, in practice it's unlikely to work that way.

--Josh Patashnik