The Politics of Abortion

Ron Paul and the principle of subsidiarity.

Top o' the Stack.

Comments

[Tom Tillett]

I am all in on the notion that Dobbs was an important decision relegating abortion regulations to the level of the state governments where they belong. However, I am troubled at the infanticide legislation being passed in some Democrat jurisdictions, where abortion is permitted right up to the day of delivery. Is that something we can standby and allow simply on the principle of Federalism? How about killing the baby after delivery, which was endorsed by no less than the Governor of Virginia, Ralph Northam, just a few years ago? These seem to demand some sort of national protection for the unborn and babies in general. But that opens back up the whole national and politicized debate on abortion that has wrecked our politics for a couple of generations - that Dobbs was meant to fix. So I am not sure what we are to do ...

[BV]

Good comment, Tom.

We agree on the grave immorality of abortion on demand for any reason right up to the moment of birth. We also seem to agree that the SCOTUS decision to overturn Roe v. Wade was correct. If so, it is for the states to decide what is legally permissible and impermissible in their jurisdictions. But then we simply have to accept that some states will pass immoral laws.

We can't have it both ways as Pence and others seem to want. We cannot both return the abortion question to the states and yet demand that there be a federal law banning abortion near the time of birth, or putting any restrictions on abortion.

What can we do? We can try to persuade our fellow citizens of the immorality of abortion. Our side has good arguments. But in a contest between reason and concupiscence, concupiscence will win.

I expatiate further here: https://williamfvallicella.substack.com/p/abortion-and-the-wages-of-concupiscence

[Tom Tillett]

Bill, you are correct on both points, I am an anti-abortion absolutist (from the moment of conception) and believe that Dobbs was correctly decided. And I agree in principle that we should let the states "decide what is legally permissible and impermissible in their jurisdictions … [and then] … accept that some states will pass immoral laws." That approach corresponds with both a strict federalism and my conservative stoicism. But since your substack was about the politics of abortion, let me add some political concerns.

Here's the thing about Dobbs: essentially, it only ruled that the practice of abortion was not a constitutional matter. By its terms, states were given free rein to pass abortion laws, but the holding says nothing about whether or not Congress could impose a national abortion regime on all 50 states.

Now, I would say that the Feds lack jurisdiction to pass such a law under the Interstate Commerce Clause - I can't think of many things that are less interstate than an abortion procedure. But that is a purist (read: originalist constitutional) argument and the constitutional concept of "interstate" has been watered down considerably these last 100 years or so. As such, it is not a given that SCOTUS would rule correctly if any such national law were passed in Congress.

The Democrats know this; almost immediately after the Dobbs decision, 49 Democrat Senators voted in favor of a national abortion regime that would have permitted abortion up to the day of delivery. It was defeated, of course, but such an attempt (and there will be more) put the abortion issue right back in the national political debate. Democrat attempts to pass Federal abortion laws allow them to continue to charge that Republicans oppose a woman's "sacred right to choose" and thereby gain the single-issue support from those infamous college-educated suburban women.

So, as a practical political matter, unless and until SCOTUS takes the issue up - and rules correctly against any Federal law on abortion - I fear that we have no choice but to propose our own national abortion regime and try to mitigate the Democrats' specious messaging to suburban women.

On the other hand, perhaps a strong federalism stance opposing any national abortion law would work politically. I believe an argument that "this is a matter for the states to decide" is just too abstract for those oh-so-educated suburban women; but maybe not. It is certainly possible that such a principled and constitutional argument, properly messaged, could gain purchase with the voters.

The downside risk, however, is pretty severe: the Democrats gain power with the help of their abortion appeal and pass a monstrous national abortion regime. And then all our chips are on SCOTUS to exhibit the courage to make the right decision. "Courage" and "John Roberts" are never used in the same sentence, so all the Left would need is one conservative justice to cave and vote their way …

I guess the bottom line for me is that standing on the principle of federalism (and subsidiarity), both legally and politically, at least has the advantage that it is a principled stance, which is more attractive than trying to steer the ship of state through shifting political winds. We ought not throw away our common sense (and constitutional) judgment that abortion is a matter for the states to decide, simply because we fear a loss in the political sphere. In other words, it is generally better to live in faith in the good and true rather than in fear.

[BV]

Tom: >>But since your substack was about the politics of abortion, let me add some political concerns.<<

What you have written conversationally implies that what I wrote was not political in nature. But isn't the political concerned primarily with laws and with questions about the constitutionality of laws?

[Tom Tillett]

Bill: I'm not sure I see the implication you speak of. The whole subject was about the politics of abortion and in a self-governing Republic that we purport to be, laws and the constitutionality of laws are of the essence of politics. So, why would I make such a distinction? My "adds" were simply political concerns in addition to the political concerns that were covered in your substack article, to wit, the limited applicability of Dobbs in preventing the Feds from passing a national abortion regime.

And I think that what you wrote in favor of federalism and subsidiarity should be an important part of any political messaging in opposition to a national abortion regime. Single-issue college-educated suburban women notwithstanding, I believe the American culture still retains an affinity for sound legal and constitutional arguments.

[BV]

Tom, what you should have written is: >>But since your substack was about the politics of abortion, let me add some FURTHER political concerns<< but w/o the caps.

>>Here's the thing about Dobbs: essentially, it only ruled that the practice of abortion was not a constitutional matter. By its terms, states were given free rein to pass abortion laws, but the holding says nothing about whether or not Congress could impose a national abortion regime on all 50 states.<<

This is what I don't understand. Given that the question has been returned to the states, if Congress were to impose a national abortion regime, that imposition would be unconstitutional, would it not?

[Tom Tillett]

Duly noted. Clarity and precision are important in the benighted times we live in.

To your question: I think a national abortion regime would be unconstitutional under Interstate Commerce Clause jurisprudence, and I expressed that in my comment. But that issue has not been addressed by any court, including Dobbs. The Dobbs court only held that the constitution was silent on the abortion issue and that states were free to pass abortion laws if they so desired. This is way short of holding that abortion is "returned to the states" as an exclusive matter, and unless and until a court rules on that issue, the Democrats are free to propose - and pass, if they can - a national abortion law and keep the abortion issue front and center in national elections.

[BV]

For a deeper dive: https://crsreports.congress.gov/product/pdf/LSB/LSB10787