He continues:

Cultures are powerful and mysterious things; the idea that laws and politicians can direct their paths is, to say the least, lacking in empirical support. In the years immediately before Roe, abortion was a crime, and the number of abortions soared. Since that decision, abortion has been a constitutional right–yet, since 1980, the abortion rate has fallen by more than one third. The lesson is one conservatives should find easy to understand: Like modern economies, modern cultures resist centralized control. If pro-life evangelicals–of whom I’m one–wish to persuade our fellow citizens to protect unborn life, we must persuade them, not prosecute the ones who disagree.

Again, there’s a kernel of truth here. There are limits to the law’s ability to shape a culture; much of the time the law is more shaped than shaper. All the more reason not to treat law and culture as wholly separate things, which is what Stuntz does. His “empirical” argument is dodgy. One reason the number of abortions soared before Roe was that the law had changed: Several states liberalized their abortion regulations. The drop in the abortion rate since 1980, meanwhile, is meant to demonstrate what, exactly? That imposing a radically liberal abortion law will cause the abortion rate to increase a lot, but that it can then come down–but not to the levels that obtained before the radically liberal policy was imposed? Stuntz also ignores policy changes that have taken place since 1990, and the evidence that even modest regulations of the unlimited right to abortion have made a difference.

The last line of the passage typifies the sloppiness of the whole analysis. Leave aside the prosecute/persuade dichotomy, which is mostly a cheap bit of rhetoric that again fails to treat law as a part of culture. Leave aside the fatuity of the statement when applied to injustices that are actually considered as such. (We don’t say that we must persuade–sorry, persuade–people not to commit other types of homicide.) The pre-1965 abortion statutes did not entail prosecuting people for “disagreeing” with them, or with pro-life premises, any more than laws against embezzlement involve prosecuting people for “disagreeing” with them. Restoring them would leave Stuntz free to hold any foolish belief he wants, which is probably even luckier for him than it is for the rest of us.