Federalism May Offer Abortion Solution

When the confirmation hearings for Supreme Court nominee Samuel Alito begin in January, much of the debate will focus on the issue of abortion.

Alito has been nominated to replace Sandra Day O'Connor, one of the six justices who reliably voted to uphold Roe v. Wade. It's unfortunate that abortion will dominate so much of the discussion about Alito. It's unlikely that a case offering the opportunity to undo Roe will come before the Supreme Court any time soon, and even if it should, Alito's confirmation would put the unofficial Supreme Court abortion scorecard at 5-4, enough to keep Roe intact. The abortion debate obscures more pressing issues far more likely to come before the Court.

Nevertheless, because abortion will be front and center, I'd like to offer an approach to the issue that will probably elicit reservations on both sides of the debate, but one I think is fair, grounded in the reality of contemporary politics and, most importantly, loyal to the Constitution.

First, my biases: I'm a pro-life libertarian. I believe in wide leeway for and tolerance of personal freedom, but I also believe that a fetus has some rights that the state is obligated to protect.

Abortion, then, is a weighing of the right of a fetus to live versus the right of the woman carrying it to terminate her pregnancy.

Most Americans believe — correctly, I think — that pregnancy is a process by which a fertilized egg grows into a human being. Polls show Americans to be overwhelmingly opposed to late-term abortions, but polls also show that Americans overwhelmingly support the widespread availability of the morning-after pill, a souped-up birth control pill that prevents a fertilized egg from attaching to the uterine wall, staving off a pregnancy before it begins.

I think the public largely has it right, here.

Abortion policy, then, is a game of line-drawing. We're looking for the moment at which a fetus reaches the stage of viability, when its right to live becomes more compelling than its mother's right to terminate her pregnancy. Enmeshed in this line-drawing game are deep convictions about morality, and personal and community values, not to mention medical technology, which continually pushes back the point at which a fetus can survive outside the womb.

While it's unlikely that the Founding Fathers anticipated the abortion debate, they did give us a framework around which to govern on issues just like it — highly emotional, high-stakes issues that go to the core of one's personal values and beliefs. They rightly recognized that the federal government is far too unwieldy and clumsy to deal with such delicate matters. These issues are best legislated by the states — or, better, by cities or counties. We can then choose to live under laws that most reflect our values. We vote with our feet.

Line-drawing is a police power. And the Constitution's framers correctly concluded that police powers ought to be reserved for the states, not the federal government (note: several more recent Supreme Court justices seem, sadly, to disagree). The best solution to the abortion debate, then, isn't Roe, which even many abortion-rights advocates will concede is bad law. But it isn't a pro-life amendment or a federal ban on abortion, either.

The best solution is robust federalism. Forgo Roe, and let each state set its own policies on abortion. Those for whom abortion is an important fundamental right can live in areas where abortions are widely available. Those adamantly opposed to any and all abortions can live in jurisdictions that ban the procedure. People like me could live in communities where our tax dollars won't be funding abortions.

Contrary to claims from abortion-rights advocates, overturning Roe wouldn't make abortion illegal. In fact, it wouldn't change much at all. Abortions are already difficult, if not impossible, to obtain in many communities. This is in part because of the restrictions the Supreme Court has allowed states to impose after Roe, but also simply because there are not always doctors willing to perform them. But even under a Roe reversal, states would still be free to make their own laws pertaining to the procedure in ways that align with their own values.

Federalism allows people with divergent beliefs to hold on to those beliefs, but at a minimal cost to those who disagree. In today's mobile society, a politic more amenable to your values and beliefs could be but a tank of gas away.

This solution isn't perfect. Many people don't have much choice in where they live, and many don't have the means to leave. But then, that's especially true when the federal government is making the laws. It's much easier to leave a town, county or state than it is to leave the country. Likewise, the Supreme Court would need to word its decision in such a way so that it was very clear on the point that not only isn't the federal government authorized by the Constitution to guarantee an abortion, but that it isn't authorized to prohibit abortion either.

Perhaps the most pertinent criticism of the federalist solution is that people with strong beliefs about an issue like abortion aren't content with applying those beliefs only to themselves and their immediate communities. Pro-lifers want it inscribed into federal law that life begins at conception, with no exceptions. Abortion-rights advocates want federal tax dollars to pay for abortions for the poor, despite the fact that some of those tax dollars come from citizens with moral objections to the procedure.

True believers, then, would never accept a federalist solution on a volatile issue like abortion. They'd rather impose their own values on everyone else. But after three decades of poisonous abortion politics, perhaps it's time the rest of us considered it.

Radley Balko maintains the The Agitator weblog.

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