James C. Banks

The Politics of Federalism and Economics of Reproduction

In Uncategorized on February 19, 2011 at 5:03 pm

For American conservatives, the right answer to every problem is federalism. Is there a healthcare crisis? Leave it to the states. Is the school system failing America’s children? Leave it to the states. Should same-sex marriage be legal? Some call for a constitutional amendment, but most will probably say leave it to the states.  Though few probably bothered to read the essay in which Fred Thompson called federalism his “lodestar,” many self-described conservatives swooned when he described himself as a federalist. 

95% of the time, I think that conservatives are right to support federalism.  The system in place—which enumerates what the federal government can do and (through the Bill of Rights) what the federal and state governments cannot do—is probably the best guardian of liberty to consist entirely of words.  But this still leaves the 5% of the time when federalism is not the answer.

Two things within a nation’s legal framework that federalism encourages are specificity and complexity.  Though it might be surprising to most people who had never thought of the issue before, murder, in most circumstances, is nowhere forbidden in that centerpiece of American jurisprudence, the Constitution; it is only under rare circumstances that murder is treated as a federal offense—such as when the murder is committed on an airplane. Otherwise, it is the state attorney general’s office that prosecutes the crime. 

This idiosyncrasy of American law is not normally seen as a problem, because everyone takes for granted that state governments will protect—to the best of their ability—the public from murderers and thieves.  No one feels a need for the federal government to pass legislation making murder in all circumstances a federal offense, because no one believes that the state governments will treat murder as anything other than a state offense.

But this framework does not and cannot account for evolution of moral sentiments.  The Founding Fathers could not have foreseen that reproductive rights would become an issue 200 years after their document was crafted. But it has. Federalists in the pro-life camp often claim that their political philosophy is the answer to the controversy: Let Mississippi outlaw abortion, and Massachusetts will keep partial-birth abortion legal. This, to me, is largely wishful thinking.

Under such a system, the number of abortions would be determined less by the states which restricted it than it would by the states which allowed it. While federalism might have saved a fetus in a pre-automobile America, today it is difficult to imagine that anyone who wanted to terminate a pregnancy could not do so because of the inconvenience of travel (for which organizations like Planned Parenthood would probably begin to provide funding). Restrictions would have even less impact in the conservative states in the West—Utah, Idaho, the Dakotas—because of the proximity of Tribal nations.

This does not mean that local and state restrictions would have no impact on the number of abortions that occurred.  Those seeking an abortion in conservative states would, if nothing else, give it heavier thought if they knew that this procedure had been outlawed in their own communities, but it is not the silver bullet that many conservatives claim that it is.

One of two things would have to occur for abortion to be banned altogether, the first is undesirable, the second unlikely:

The Supreme Court could rule the practice unconstitutional.  It is difficult to imagine how this could be done, without resorting to blatant judicial activism. There is nothing in the text of the Constitution that indicates the framers intended to outlaw the practice at the federal level.

Congress could pass an amendment attesting a right to life and defining it as beginning at the moment of conception.  This is highly unlikely, given that a slight majority of Congress has supported the legality of some abortions since the 1970s.  It would be the most constitutional means for a total ban, but also the least possible. That being said, were the issue to be returned to the states, the Congress could invoke the Commerce to prevent individuals from crossing state lines for an abortion.

The issue is messy, and it is difficult to conceptualize the course conservatives who ground their beliefs in natural law should take.  But one thing is for sure—in relation to reproductive rights, federalism is not a solution, but a compromise.

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