Radley Balko, writing in Fox News, discusses a compromise on abortion I would accept:
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.
Jane Galt has more.
I’ll leave aside the “move to another state if you lose your rights at home” nonsense - it’s been widely dealt with elsewhere.
But this:
highly emotional, high-stakes issues that go to the core of one’s personal values and beliefs . . . are best legislated by the states — or, better, by cities or counties
raises an interesting question: Why states, cities, or counties? To put that another way, why shouldn’t we deal with “highly emotional, high-stakes issues that go to the core of one’s personal values and beliefs” at the highest, not the lowest, administrative level?
The implicit answer seems to be that matters of personal value and emotionally-significant decisions should be handled by those most in touch with the persons whose values and emotions are in question. Local communities have no special wisdom about abortion, and are unlikely to harbor Constitutional law specialists more skilled than federal judges and the Supreme Court (unless your county happens to include Harvard Law School). What they do have is a better understanding of the moral values most characteristic of their populations. For this reason, they may be better able to respond to their citizens’ needs than would federal-level decisionmakers.
But if familiarity with personal values and emotional commitments is a criterion for the locus of decision-making authority on abortion, why, again, should states, cities, or counties be the correct repository? Why not go all the way and push decision-making power down to the lowest possible level of authority? Why not let women make their own decisions, based on their own values and emotional commitments?
State or city leaders may know their citizens better than Congress or the Supreme Court does, but there is no question that those citizens know themselves better than any governmental official. And there is nothing better in having your personal autonomy and your bodily integrity violated by some redneck County Board reactionary than in suffering the same thing at the hands of Supreme Court rightwingers. From the woman’s point of view, neither state nor federal usurpation of her rights to her own body is especially desirable, but from the point of view of the best-placed authority on that woman’s personal values and emotions, the woman herself is obviously the only right choice to hold power over her healthcare decisions.
If we really believed that abortion was an “emotional, high-stakes issues that go[es] to the core of one’s personal values”, we would let the person involved make that decision. Interestingly, this was exactly the reasoning in Roe that prohibited state bans on abortion in the first and second trimesters, but I’d be happy to take your suggestion to go all the way and leave the entire decision up to the person whose values are at stake, if I thought that suggestion was anything but a disingenuous attempt to vacate Roe.
I agree with almost everything you say Kevin T. Keith, except I’d go down even one more level, and say we should let the unborn child decide if she wants to live or not.
But somehow, me thinks you weren’t thinking of the unborn child when you said “personal autonomy” and “bodily integrity violated”, were you?
Kevin T Keith -
I think HP is right about the logic of your analysis. If autonomy is really the issue, then the autonomous choice of the child is being utterly obliterated under the current pro-choice discussion.
HP -
Read above. Also, though, I’m not sure about the rational behind Balko’s statement that:
That sounds pretty similar to the Missouri compromise during the slavery/anti-slavery, ie. “You take this area, I’ll take this area.” At least in that situation, not only did it ultimately fail to resolve the tensions, it failed to address the centrality of the slavery issue.
But the “people like me” argument is also funamentally flawed for abortion. While I agree that this issue shouldn’t be decided, nor funded on a federal level, the issue is much larger than just a “keep to your own” type philosophy.
I believe that a significant reason why there is so much polarity on this issue isn’t because it is being decided on a federal level. Rather it is because - on both sides of the issue - abortion represents a fundamental view of morality that, like Kevin Keith said, “Local communities have no special wisdom about…”
Why, then, is this a compromise that you would be willing to settle for?
Personally, I would support a constitutional ammendment that gives all human beings, regardless of color, sex, or stage of development, equal rights.
But I also believe in Democracy, and believe that judicial activism threatens that. So when I say I accept this compromise, I mean it in the sense where neither side gets what they want by judicial activism. The pro-choicers don’t get unlimited abortion forced down everybody’s throats without the citizens say, and pro-lifers don’t get a ban on abortion forced down everybody’s throats without the citizens say.
This way both positions, the pro-choice position, and the pro-life position, has to be implmeneted the old fashion way, by winning the hearts and minds of the citizens.