News broke recently that Florida Senator Marco Rubio plans to sponsor a bill that would ban abortions after 20 weeks. With Rubio’s reputation recently taking a hit in conservative circles, a cynic might be excused for considering this a political move instead of a principled stand. Principled or not, there are two questions that Rubio has apparently not considered: is it rational to argue this issue at the national level and is such a bill constitutional.
To answer if it is rational, let’s run through a quick hypothetical scenario. Let’s say you’re walking down your street and come upon one of your neighbors lying dead in his driveway with a knife sticking out of his back. As your neighbors crowd around the scene, you see someone dialing their phone. Who do you think this person is calling?
Maybe they’re calling the President of the United States. After all, many murders happen across the country every day, clearly making this a national issue that demands the president’s attention. Or, if not the president, maybe they’ve dialed the offices of federal senators and representatives to let them know about the murder. When it’s time to prosecute the assailant, where does the trial take place? Well, an issue as important and widespread as murder certainly demands the attention of the Supreme Court.
Preposterous, right? Of course a local crime commands a local response. It would be irrational to use national machinery to address a local or state issue like a violent crime of one individual towards another.
This same logic applies to the issue of abortion. As the Pennsylvania Tenth Amendment Center’s Benjamin Gross points out, “Murder, infanticide, abortion and rape all violate the non-aggression principle but the appropriate venue for legislation is the states. Any other viewpoint is contrary to Jefferson’s and Madison’s.”
Not to mention the Constitution. Not only is it irrational to decide this issue at the national level, it’s unconstitutional to boot. To understand why, let’s use the Tenth Amendment as our starting point: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
So, in order for federal legislation on abortion to be constitutional, there would have to be some specific grant of power in the Constitution itself that gives the authority of regulating abortion to the federal government. The readily apparent fact of the matter is that such a delegation does not exist. If it did, it would have fallen under the federal government’s police powers which Thomas Jefferson noted were limited to, “a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever.”
The inescapable reality is that the criminalization (or not) and regulation (or not) of abortion is entirely a state issue. This will make most opponents of abortion uneasy, but it shouldn’t. The prevalence of abortion only exists to the extent it does today because the Supreme Court unconstitutionally nationalized the issue in the 1973 Roe v. Wade decision. Before then, the states were permitted to determine their own policy on abortion. Had Roe never come before the Court, or if the states had decided that it was unconstitutional and they didn’t have to abide by it, the number of abortions would be far lower than it is today.
Even so, many abortion opponents will say that although abortion is a state issue, constitutionally speaking, now that it has been nationalized there is no choice but to address it at that level. But, to persist in this strategy ignores not only the Constitution, but the facts.
Francisco Rodriguez of the Florida Tenth Amendment Center recalls that “In 2004, Missouri Senator Jim Talent proposed a bill that would return abortion laws back to the states. In the research for the bill they found that 36 states would get rid of abortion, or at least most levels of abortion”, with only 14 states continuing the federal mandate for abortion on demand. Meanwhile, 40 years have passed since Roe v. Wade and there’s been no progress on this issue at the federal level, even when Republicans controlled the White House, the Congress and the Supreme Court. For those who insist that any abortion ban must happen at the national level I would point out that 14 is less than 50.
The problem with ignoring the Constitution and arguing this issue at the national level is that doing so totally misunderstands the importance of federalism, the system of divided power devised by our Founders. What they understood was that to endow the central government with the power to good, it must also possess the power to do evil. Furthermore, when a national, as opposed to local, government does something evil the scope of the harm of that action is much wider. It’s hard to imagine a clearer example of this than abortion.
Incidentally, this same argument applies to the other side of the issue. Most supporters of abortion would rejoice that their position has been foisted upon all 50 states, but they will vehemently and hypocritically rail against other federal legislation that would force somebody else’s ideals on them. Ironically, the Roe v. Wade decision was based on a manufactured right-to-privacy provision of the Fourteenth Amendment. Given recent events, isn’t the federal government an odd place to repose the protection of privacy?
For opponents of abortion, there is clear evidence that the number of abortions would drastically decrease if the states regained their constitutional right to decide their own policies on this matter. Why then do opponents of abortion eschew the constitutional argument? Are they unable to see the cause and effect of nationalizing this issue? Are they more interested in trying to harness the power of the federal government than they are about actually reducing the number of abortions? These are questions to which I have no answer.
What is clear is that to continue to pursue this issue at the national level is utter folly. If politicians like Marco Rubio are truly interested in an effective strategy that is also constitutional, the path is before them: return the issue to the states. Not that the states need to wait. They could just decide that 40 years of usurpation is enough and nullify federal abortion laws on their own. At least one state has already started this process. Who will be next?
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