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Federalism Has Its Limits, and Abortion Will Soon Test Them
Just as with slavery, leaving this issue to the states won’t save us from conflict
There is a longstanding argument that our system of federalism is a crucial tool for reducing conflict by letting states tailor their regulations and laws to the ideological and cultural preferences of their citizens. We do things differently in Texas than in California, or in South Carolina as opposed to New York. Why not allow laws to be more restrictive in some respects and more permissive in others, depending on local standards?
There is a lot of truth to this, and the federalization of everything can be an engine of unwarranted conflict. But the Supreme Court opinion overturning Roe v. Wade may offer a counterexample, a case in which leaving decisions up to the states could lead to chaos.
The decision in Dobbs v. Jackson Women’s Health Organization does what supporters of federalism have always wanted. It returns the issue of abortion to the states, allowing them to protect the procedure or prohibit it as they see fit.
In theory, this allows states to be “laboratories of democracy,” trying out social experiments so that people in other states can decide whether to emulate them. We are doing this with marijuana, which is now legal for recreational use in 18 states. This will tell us whether the fabric of society will dissolve if people can get high without being arrested. (So far, it appears that it will not.) It also provides a safety valve that allows occasional cannabis users in restrictive states to go elsewhere for a legal toke.
So will sending abortion back to the states lead to a similar solution?
What Happens Next?
Consider some of the possible consequences. Anticipating the Dobbs decision, a number of states have already passed or are in the process of passing bans on abortion after as early as six weeks into a pregnancy, before many women even know they are pregnant. These laws are enforced by making it a felony for doctors or nurses to perform an abortion, but they don’t target the pregnant woman herself. In some cases, abortion is punished only by a fine.
But the wave of the future could be a bill in Louisiana that would declare a fertilized egg to be a human being with full rights from the moment of fertilization—which makes everyone involved in the termination of the pregnancy guilty of murder. Notice that this would also include abortifacient drugs, such as the morning-after pill, which prevents a fertilized egg from implanting in the lining of the uterus. (It would also call into question at least one form of contraception.) In such cases, it is likely that the woman who takes the drug would be the only one punished.
This may seem extreme, but Louisiana’s proposal would be the only law that is consistent with the fundamental idea behind the anti-abortion position: that human life and full rights begin at conception. There will be a great deal of pressure for other states to adopt such a law—and, once people accept the anti-abortion ideology, there is no internal logic that could persuade them to resist.
An Underground Railroad for Abortion
Here are some scenarios that could arise from such laws. Suppose a young woman from Colorado is roommates with another young woman at a college in Louisiana. The roommate is sexually assaulted on a date, so the girl from Colorado shares her emergency supply of the morning-after pill. She bought the pills legally in Colorado, which has some of the fewest restrictions in the nation. But if she is discovered—let us presume that Louisiana follows Texas and Oklahoma in providing an incentive for vigilante enforcement by busybodies—both she and her roommate could be charged with murder.
You can begin to see the problem. How can something be completely legal in one state and a capital offense in another—particularly in a country where people move so frequently and casually from one state to the next?
The problem of people moving back and forth adds to the dilemma. Already, Republicans in Missouri have proposed a law that would make it a crime to help someone cross state lines to seek an abortion—an attempt to keep young women from crossing over into Illinois to avoid Missouri’s restrictions. This raises the prospect of an underground railroad for abortion, illegal networks that help women travel from restrictive states to less restrictive states.
Privileges and Immunities
If this sounds familiar, it echoes dilemmas from the era of slavery—dilemmas created by travel between states with radically different conceptions of rights. The anti-abortion side likes to compare itself with the abolitionists, championing an expanded protection of rights to include the unborn, from a fertilized egg up. From the perspective of a woman seeking to end or avoid a pregnancy, however, this will be experienced as a restriction on her rights. Moreover, it is the anti-abortionists who find themselves trying to reach across state lines and restrict movement across borders to enforce their control over someone else’s life. An underground railroad for abortion implies a fugitive slave law for abortion.
This should remind us of the limits of federalism and how our original version of federalism broke down in the years surrounding the Civil War. Where fundamental rights are concerned, leaving a question to the states does not allow for a happy diversity but instead creates sharp lines of division—a nation divided against itself. If we applied federalism to freedom of speech, censorship would hold sway in some states but not in others. Federalism for the free exercise of religion could result in each state having a different established church. And of course, prior to the Civil War, we did have a de facto federalism when it came to due process and the right to liberty. Given the leeway to decide who doesn’t enjoy the “privileges and immunities” of citizenship, the laboratories of democracy produced the peculiar institution of slavery.
The solution after the Civil War was to make clear that federalism and state power are explicitly limited. The 14th Amendment declared that basic rights protected by the Constitution are also protected against state governments. It put those rights off limits for experimentation in the states. The question, though, is which rights this includes.
Maybe Roe Had It Right
By the very nature of these questions, substance trumps procedure and Barone’s Law applies. There is no way to settle this by agreeing on which level of government should make these decisions. Abortion is inherently contentious because it involves a disagreement on fundamental rights. We are going to need one national answer to it—and there is no reason to think that the answer will be total restriction.
The role of federalism has never been to put our fundamental rights up for a vote but rather to allow some leeway in the exact implementation of those rights. Most of us agree that a fetus at the end of its term is a fully formed human. Of course it is because it needs to be ready to survive after birth. Few would agree that an embryo has full rights from the moment of fertilization, nor would we be willing to follow all the implications of enforcing such a rule.
The time between those two endpoints involves a spectrum of development, and there is room for debate about where on that spectrum it would still be moral to terminate a pregnancy and for what reasons—and what role the government should play in that decision. So, different states can arrive at different rules as long as they don’t place an undue burden on a woman’s right to decide the fate of her own pregnancy.
Does that sound familiar? It is precisely the version of federalism on this issue that we have had for the past 50 years under Roe v. Wade, as refined 30 years ago by Planned Parenthood v. Casey. We may find that we miss this system now that it is gone.
This essay was originally published on June 1, 2022 and has been slightly updated to reflect the Supreme Court's ruling in Dobbs v. Jackson Women’s Health Organization.