Abortion and Federalism, Cont'd - The American Spectator | USA News and Politics
Abortion and Federalism, Cont’d

Over at First Things, Joe Carter lists some of the arguments against his position on federalism and abortion, including mine, and invites readers to comment. Based on some of these comments, I thought I’d clarify my own position.

I believe that fetuses are entitled to the same legal protection against deliberate destruction as human beings in other stages of development. I don’t believe it is right for states to willfully withold that protection from fetuses, but recognize that under our Constitution most human lives are protected by state law. This constitutional structure, rather than any desire for fetuses to remain unprotected in certain states, is why I prefer state-level legislation on the matter.

There have been times when our federal constitutional structure has been ill-equipped to deal with injustices perpetrated at the state level. The treatment of blacks in the Jim Crow South is an example. This had to be rectified by a constitutional amendment and federal legislation enabled by that amendment. And even in this case, the expansion of federal power did not come without costs.

In any event, there is a crucial difference between abortion and federalism and the circumstances that led to our problems with race and federalism. While I don’t doubt that there are certain regions of the country that would be less likely to extend legal protection to fetal life, we don’t currently have a federal government that is more protective than the states in general.

Abortion on demand is not the result of federalism; it is the result of post-Roe v. Wade national policy. After Planned Parenthood v. Casey in 1992, state governments did more to protect fetal life when the Supreme Court removed barriers to them doing so. If those barriers were further removed — i.e., there was more federalism on the issue — there is every reason to believe the country’s abortion policy would move in a more pro-life direction. This post-Casey real world experience is why comparisons to state no-fault divorce laws is a non sequitur.

The elected branches of the federal government were more or less in pro-life hands for a few years of the Bush administration, when the Republicans also controlled both houses of Congress. Even in those years, the elected branches accepted Roe. During the Reagan years, another high point for pro-life influence over the federal government, a human life amendment fell 18 votes short of passage in a Republican-controlled Senate. In every other year, the White House and Congress have either been pro-choice or split on abortion.

In short, there just isn’t any reason to think that abortion is more readily available under present political circumstances because of federalism. And there are good reasons to think a hasty dismissal of federalism will lead to a federal government less restrained by the Constitution under any political circumstances.

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