What does Schiavo mean for Federalism and Roe v. Wade
The proprietor of this blog asked me a week ago to post a good faith article on "whether Republicans - as a party led by Tom Delay, Bill Frist, and other grandstanders who have forcefully inserted themselves into the Schiavo case, requested judicial activism, and made a mockery of federalist principles - can be trusted NOT to interfere with federalism again should Roe vs Wade fall." I apologize for the slow turn around.
First, my ideal world.... (Read on)
Roe v. Wade is rescinded because it is a poor legal decision and the right to legislate is returned to the states. Furthermore, the Supreme Court takes a strong stand for states’ rights control issues reserved to the states which include abortion (and the death penalty, gay marriage, gun laws, medical decisions, education, etc). The abortion debate follows the death penalty into a state-by-state debate that allows for local differences. Abortion falls from the national debate (although not entirely) and it becomes a backburner in Presidential elections. I become more comfortable voting Democratic upon occasion and the level of divisiveness subsidies somewhat.
Now back to reality. If, and I don’t believe it will happen soon, Roe is overturned the abortion debate will return to the states at first. However, nationally whichever party is in control will attempt to use federal law to address the issue. I won’t dwell on the fact that this might be a bite in the butt for liberals who have expanded the power of the federal government for two generations. My guess (and that is all it is) is that the current Republican leadership would push for less controversial restrictions at the national level. They would push for parental notification, partial-birth abortion bans, and maybe third-trimester bans. They would leave any more restrictions to the states. This is partially because they are not unified on anything further and because it will still be an emotional topic that most people would prefer to avoid debating. They will use federalist arguments in defense of their not being more restrictive. Some will mean it (McCain, Warner); others will not. No states will outright ban all abortions (despite liberal doomsday scenarios). Many will restrict it to life of the mother, rape, and incest cases. And some may limit it to first trimester. Most will pass parental notification and third-trimester bans. These bills will cross party lines from California to Alabama. They will no longer be Republican vs. Democrat.
All that being said, it is very hard to predict the outcome of a post-Roe world. There will be less absolutism (abortion-on-demand vs. no-abortion-ever) and many different compromises and middle ground opportunities. I prefer and expect most of the debate to end up at the state level. But federal monies and cross-border abortion cases will demand some form of national policy. How far those reach is hard to guess but I presume that most congressional Republicans are risk-averse on abortion issues and will be happy to leave it up to the states. And for what it is worth, I will fight with the liberals and the Democrats for their state right to regulate abortion as they see fit despite my strongly held views on the subject. I don't think I am alone among Republicans on that issue.
First, my ideal world.... (Read on)
Roe v. Wade is rescinded because it is a poor legal decision and the right to legislate is returned to the states. Furthermore, the Supreme Court takes a strong stand for states’ rights control issues reserved to the states which include abortion (and the death penalty, gay marriage, gun laws, medical decisions, education, etc). The abortion debate follows the death penalty into a state-by-state debate that allows for local differences. Abortion falls from the national debate (although not entirely) and it becomes a backburner in Presidential elections. I become more comfortable voting Democratic upon occasion and the level of divisiveness subsidies somewhat.
Now back to reality. If, and I don’t believe it will happen soon, Roe is overturned the abortion debate will return to the states at first. However, nationally whichever party is in control will attempt to use federal law to address the issue. I won’t dwell on the fact that this might be a bite in the butt for liberals who have expanded the power of the federal government for two generations. My guess (and that is all it is) is that the current Republican leadership would push for less controversial restrictions at the national level. They would push for parental notification, partial-birth abortion bans, and maybe third-trimester bans. They would leave any more restrictions to the states. This is partially because they are not unified on anything further and because it will still be an emotional topic that most people would prefer to avoid debating. They will use federalist arguments in defense of their not being more restrictive. Some will mean it (McCain, Warner); others will not. No states will outright ban all abortions (despite liberal doomsday scenarios). Many will restrict it to life of the mother, rape, and incest cases. And some may limit it to first trimester. Most will pass parental notification and third-trimester bans. These bills will cross party lines from California to Alabama. They will no longer be Republican vs. Democrat.
All that being said, it is very hard to predict the outcome of a post-Roe world. There will be less absolutism (abortion-on-demand vs. no-abortion-ever) and many different compromises and middle ground opportunities. I prefer and expect most of the debate to end up at the state level. But federal monies and cross-border abortion cases will demand some form of national policy. How far those reach is hard to guess but I presume that most congressional Republicans are risk-averse on abortion issues and will be happy to leave it up to the states. And for what it is worth, I will fight with the liberals and the Democrats for their state right to regulate abortion as they see fit despite my strongly held views on the subject. I don't think I am alone among Republicans on that issue.
Comments
that being said, if in some fantasy-load roe is overturned
1) the democrats will no longer have an albatross around their neck
2) those of us (male and female) who value the "abortion option" in our life choices will be much less inclined to vote for avowed pro-life politicians when the aforementioned option is a one layer of government closer to revocation
3) so, a net bonus for democrats
4) unlikely attempts by a federal republican government to fiddle with abortion on the federal level aside from the most general measures (ie; mild restrictions on third trimester abortions) will result in the return of that party to electoral defeat. it will also result in a withdrawl of money from the country-club-trophy-wife-stock-options set who currently vote republican and donate republican secure in the knowledge that the public nodds to social conservatism will never materialize into action
5) many states will ban abortions aside from the exceptions mentioned in the above post. won't matter in terms of numbers, states where abortion might be banned have very few accessible clinics in the first place!
Federal restrictions would hurt Republicans at the polls. The small government conservatives would definitely be taken aback by it.
I do not believe states will ban abortions outright. And if you have any poll that shows any state where that view is a majority, I would love to see it. Most pro-lifers know there are certain cases where abortion should be allowed (including the most fervent such as Senator Coburn who has performed two abortions). You are, however, right that those states with more restrictions already have fewer abortions due to both the higher incidence of people who do not consider abortion an option and the lack of resources.
Thanks for this post. Some comments.
The question of whether Roe is a bad decision or not rests, I believe, on the scope of interpretation granted to the SCOTUS. If I'm not mistaken, the argument in Roe, and in similar cases like Griswold, is that it is not unreasonable for the court to infer rights not explicitly stated in the Constitution, but which are consistent with the principles found there. I'm not an attorney, correct me if I misunderstand. You may or may not agree with this line of argument, and in fact I'm not sure *I* agree with this line of argument, but it is not a position that is without precedent or merit. So, the question of whether Roe is, or is not, a good decision, is not cut and dried.
It's a fact that Roe has become a line of demarcation -- a line in the sand -- between people who are socially liberal and socially conservative in the US. It divides us. It's also a fact that Roe removes decisions about a right to abortion from the legislature, leaving many to feel that they have no effective way to make their opinions heard.
The reality:
If Roe were overturned, the issue would as you note return to the states. That may very well be where it belongs. IMO that probably is where it belongs. However, I think you underestimate the ambition of the Republican leadership in that case. IMO it is extremely clear that the social conservatives among the Republican leadership would not be content to let individual states sort it out for themselves. I believe they would more or less immediately seek not merely less controversial restrictions, but a ban.
It's a byword that whoever is not in power immediately becomes fond of federalism, and for whoever is in power, it loses its appeal. IMO the Republicans have demonstrated the latter case to be true.
Cheers -
I have a comment that I use often that applies here.
Any court that can't find where discrimination based on race (i.e. affirmative action) is unconstitutional but can find the right to privacy in there is imposing its views on the document.
I think if you gave impartial non-political people a copy of the Constitution and asked if discriminating based on race for any reason was allowed, it would be obvious that it is not. And if you asked that same crowd if abortion was mentioned, they would say no.
I'm not a lawyer. I understand the "living constitution" idea. But I think it is a neat way for justices to create laws they like. That isn't their role in my view.
If Republicans do overreach after Roe falls (call me hopelessly optimistic), then they deserve the backlash they will get. But there are some true federalists in the conservative movement and in the Republican party. As evidence, witness the difference in reactions between the MA ruling on gay marriage and CT legislative civil unions. One is much more muted because it came from a legislature and it only applies to CT. That's how things should be done in my mind.
Since I'm on the topic of election promises that the Republicans have failed to deliver, let's talk about abortion. I and just about every other social conservative who voted for Bush want it gone, and all that has to happen is for Congress to pass a bill defining human life as beginning at conception. No mention of abortion is needed, and the bill would be completely constitutional and unchallengable in court. Boom, problem solved, at least while we have control of Congress or the presidency.
Frankly, I just dont see evidence to support your insistence that the federalists will triumph. Its clear that if Roe vs Wade is abolished, then federal intrusion outlawing it nationwide will surely follow. You havent yet actually given a reason, other than faith, to suggest otherwise. Is there some vocal and influential minority within the GOP that has articulated support for abortion if it were a state decision?