Blog for Choice: Abandonment of Federalism in the Face of Roe

Last November, when Sen. John McCain (R-AZ) declared on This Week that he favored a constitutional amendment to ban abortion, but also thought Roe v. Wade should be overturned so the issue could be returned to the states, it was only the most overtly inconsistent statement of how conservative politicians deal with two opposing forces. On one hand, constituents and the Republican base want to see as much as possible done to make abortion unobtainable, so voting for federal abortion laws like the "partial birth" ban and federal constitutional amendments to prohibit abortion is necessary to appease those for whom abortion is an appalling moral evil that must be stopped in any way possible. On the other hand, the best neutral justification for overturning Roe v. Wade -- that advanced by Justice Scalia and other sophisticated conservatives -- is that it federalizes an issue that traditionally belongs to the states.

Nor is abortion an area where federal law occupies the field and the dormant commerce clause or any other constitutional provision would prevent states from regulating. Within the bounds of the Roe/ Casey line of cases, I can think of little that the federal government can legislate for the nation that state governments cannot legislate within their own borders. Possibly with the FDA having approved RU-486, an individual state cannot ban its importation without interfering in interstate commerce. But this is a relatively new technological change; the fundamental aspects of abortion regulation that are judged on whether they are "undue burdens" are essentially the province of the states. Indeed, the states were banning the dilation-and-extraction abortion procedure long before the federal government did, and it is the Supreme Court's precedent of striking down those bans that makes the federal one a failure on stare decisis.

So can congressmen and women who vote for federal abortion regulation be regarded as true federalists?

I suppose they can say that abortion, like racial discrimination, is a sufficient evil that even federalism must make an exception for it; just as some states would not have banned discrimination, some will not ban or heavily regulate abortion, and so the expansive commerce clause powers embodied in the Civil Rights Act of 1964, or the Partial Birth Abortion ban, are justified consequentially.

Such a statement, however, does commit the conservative politician to a somewhat radical position. Racial discrimination is generally understood to be an evil nowadays, to the point that Republicans can adopt the Rev. Martin Luther King's rhetoric to argue that the race-consciousness of affirmative action is a violation of his dream that children "not be judged by the color of their skin but by the content of their character." And opponents of legal abortion have attempted to tie Roe's assumption of Constitutional non-personhood for fetuses, to Dred Scott's now-reviled decision that descent from slaves condemns African Americans to permanent Constitutional non-personhood. (Though recognizing fetuses as legal persons would fly in the face of tradition.)

But the moderate speech by most national politicians -- like Bush's remark that "Good people disagree on this issue" -- on abortion means that comparing support for legal abortion to support for racial discrimination is not viable, as long as even a narrow majority of Americans hold the former position and would be outraged by the implication that they support the latter. So the audience before which McCain and others can plead their federalist bona fides is likely to be relatively small: one that sees legal abortion as so terrible that it must be stopped even at the cost of stepping on state prerogatives. At least racial discrimination could be reasonably said to interfere with interstate commerce. If people of color could not be certain that any Birmingham hotel would let them sleep there when they traveled on business, this falls more clearly within the federal government's power to regulate than the physician-in-or-affecting-interstate-commerce basis of banning a particular abortion procedure (particularly when the same physician will perform a potentially less safe alternative procedure).

Ultimately, federalism is a relatively minority concern (alas, not a "discrete and insular minority"!), and one that is more likely to be used instrumentally in political debate than regarded as an end in itself.