Federalism Can Solve the Abortion Fight

Diversity is a mantra in modern America. Yet when it comes to hot-button public policies, Americans prefer procrustean conformity to state experimentation. Recently enacted state abortion laws are a case in point.

Georgia’s “heartbeat” law, set to take effect next year, will prohibit most abortions once a physician detects a fetal heartbeat, which is typically discernible at about six weeks. Hence, the heartbeat law is expected to drastically reduce the number of abortions in Georgia.

The Illinois legislature, on the other hand, has declared abortion a “fundamental right” and removed sundry regulations on abortion clinics. Fundamental rights, according to the U.S. Supreme Court in Washington v. Glucksberg (1997), are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.” Based on this state classification, the number of abortions in Illinois will likely rise.

Abortion proponents have called for a boycott of Georgia. Alyssa Milano and other Hollywood celebrities promise to stop filming in the state unless the heartbeat law is repealed. Abortion opponents, such as the Catholic League, have condemned the Illinois bill as “Hitlerian.” Both sides expectantly wait for some branch of the national government to step in to overturn the laws with which they disagree. Liberals want the federal courts to toe the line on Roe v. Wade (1973) and Planned Parenthood v. Casey (1991), while many conservatives urge Congress to use its legislative powers pursuant to Section 5 of the 14th Amendment to outlaw all abortions.

Strong feelings are to be expected when one side sees abortion as a fundamental right and the other as murder. But under a proper understanding of our Constitution, one does not have to understand what makes an opponent tick or agree with his favored legislative approach on abortion or any other issue.

One of the benefits of living in a federal republic is the states’ freedom to take a variety of approaches to difficult and controversial issues. As noted by Alexander Hamilton in Federalist No. 32, under our Constitution the states “retain all the rights of sovereignty which they before had and which were not by [the Constitution] exclusively delegated” to the federal government. Inasmuch as the states under the Treaty of Paris were separate and independent republics after winning independence, this residuary sovereignty is substantial.

The federal government’s powers, as noted by James Madison in Federalist No. 45, “are few and defined.” Moreover, Madison taught that these delegated powers “will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” In contrast, “[t]he powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”

The Constitution delegates no “abortion power” to the federal government and thus the regulation of abortions is clearly part of the residuary sovereignty of the states concerning the lives and liberties of the people.

As for the 14th Amendment, which was added to the Constitution in 1868, Justice William Rehnquist in his Roe dissent rightly noted that the amendment’s ratifiers and “drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.” Instead, they simply sought to confer equal citizenship on black people to counteract efforts in some states to permanently render them second-class citizens.

We live in a divided country. Divisions and discord grow deeper when we demand national one-size-fits-all solutions to issues not expressly addressed in the Constitution. Bitterness will only grow when outsiders insist on meddling in the internal affairs of a state, whether seeking to protect life or resorting to hackneyed Hitler comparisons for legislators whose guiding principle is self-actualization.

By nationalizing political discourse on hot-button policy matters, Americans are losing the benefits of a federal system. According to the framers’ design, we need only speak with a unified national voice on topics that affect the Union as a whole. Otherwise, the people of the states are left wide discretion to engage in policy experimentation and to govern themselves. Georgia and Illinois are doing just that within our historical constitutional design.

If we want to live together in peace, we should let the federal system work and not demand uniformity, which increases internal political tensions and rivalries.