Monday, August 01, 2011

A federalist solution to abortion

When considering the gains and setbacks of the Pro-Life movement over the past thirty-eight years since Roe v. Wade, it seems to me that much of the movement has written off what could be a very viable option in eliminating abortion in this country. I am speaking of the federalist solution.

Having only really become cognizant of the abortion debate as an adult when I returned to the Church, I do not know what the "strategy" of the Pro-Life movement was in the first two decades after 1973, but it seems that the current strategy seems to be nothing other than a push for a nation wide ban on all abortion at the federal level. We could term this the federal solution, as opposed to the federalist solution, which I will explain later.

I do not think this is a bad idea, per se; I think it is the solution that comes most readily to mind, and the solution that would be most ideal. However, there are two major downsides to the federal solution: the first is the inconvenient fact that there is no possible way it will ever happen; the second is that those who have been proposing a federal solution for decades have often times come to see any other solution as unworthy of consideration and have even attacked those who question the federal solution as being not sufficiently Pro-Life.

For me, this discussion comes down to the following question: How should Catholics respond to proposals to return regulation of abortion laws to the states?

Among many in the Pro-Life movement, this suggestion is tantamount to actually supporting abortion, since returning control of abortion to the states would inevitably mean that some states would choose to keep abortion legal. Therefore, supporting return of abortion regulation to the states (which I call the federalist solution), is seen as de facto support for abortion. It is my contention that we ought not to make this inference, and that a federalist solution remains a viable option.

The fact of the matter is this: with a federalist solution, we are guaranteed that some states, at the outset, will keep abortion legal and some states will outlaw it; but, the possibility of a total elimination on a state by state basis will always remain an option that is at least possible in theory. As things stand now, no state is permitted to outlaw abortion absolutely, though they can place restrictions upon it. Thus, we would go from a situation in which abortion is legal in all 50 states to a situation in which at least half of the states could outlaw it entirely with a theoretical possibility that the remaining states could outlaw it eventually. Placing the issue in the realm of state law rather than federal makes change much more probable.

Of course, some will say that the third option is for an outright federal ban binding in all 50 states. Perhaps I am being pessimistic, but this will simply never happen. Case law and precedent have been going against this option for decades. Roe v. Wade has been reaffirmed at the federal level, especially in Planned Parenthood v. Casey (1992). Judges, presidents and most lawmakers have made it plain that, while they may support a reduction in abortion rights, very, very few are in favor of an absolute prohibition because it is too politically divisive. The only way a possible federal ban on all abortion could happen would be with a constitutional amendment - and there is no way anybody who knows American politics can place much hope in that happening.

The only places where there have been significant victories on the abortion front is on the state level. Many states, such as Nebraska, would outlaw abortion entirely if not for the federal law based on Roe v. Wade that forbids it. State law is where the victories are being won against abortion, and any empowerment to state law in this regard should be welcome.

We should also note that many Pro-Lifers adopt the maxim of aiming to reduce the amount of abortions by as much as possible, even if outright elimination is not possible. This thinking was brought forward to justify voting for George W. Bush in 2000 and 2004, although Bush favored abortion in cases of rape and incest. The argument was that Bush was "basically" Pro-Life, and that the election of Gore or Kerry in his stead would have represented such a victory for abortion advocates that a vote for Bush was acceptable because under his administration abortions were likely to be greatly reduced.

Now, a federalist solution to abortion is opposed on one hand because it would immediately make abortion entirely accessible in those states where no state restrictions currently exist, and it would open up the possibility of more abortion services in other states since there would be no federal law prohibiting it.

First, returning power of abortion to the states would not expand abortion in any state because states that want to encourage abortion are not prohibited from doing so now. Abortion is easily available in California now, and will continue to be so if power was returned to the states. Nothing is being enabled in these states where abortion is already accessible. So there is no net increase in the number of abortions, since such a transfer of power would not affect the availability of abortions in states where it is already widely available.

On the other hand, there would be a net decrease in abortions, however. If we look at states such as Nebraska, Michigan, Oklahoma and Texas, where state law already sharply curtails abortion services, a return of power to these states would result in outright bans. Michigan, which has 36,000 abortions per year, would go to having zero abortions per year. We could expect similar trends in other states. Thus, there would be no rise in abortions in states where it is already widely available, but a tremendous decrease in states that are already disposed to the Pro-Life position. Returning power of abortion to the states would leave us with a net decrease.

If we just take the six most Pro-Life states, according to Americans United for Life, which compares numbers of abortions relative to total population, we can see that a return of abortion regulation to the states (presumably resulting in outright bans in these six states) would decrease abortions by 166,500 abortions in these six states alone.

Texas - 86,000 abortions per year
Michigan - 36,000 " "
Louisiana - 15,000 " "
Nebraska-2,500 " "
Oklahoma - 7,000 " "
Pennsylvania- 20,000 " "

If we presume that more than these six "top Pro-Life states" would probably ban abortion, then factor in other states that will probably restrict abortion without outlawing it entirely, we can see that abortion would be easily reduced by the hundreds of thousands, perhaps millions, per year.

But what about the other states where abortion would remain perfectly legal with no restrictions? Can we tolerate a system in which this is permissible? I would say (a) we are already tolerating it now and (b) at least in the scenario I am proposing, we have the potentiality of one day overturning abortion laws in these states, as opposed to now, where the Supreme Court guarantees the right to abortion and it is enforced by the highest law of the land.

Can we not see that abortion laws in these states would be on much weaker footing if such laws were in the hands of the states rather than in control of the federal government?

In our current situation, the government would basically need to establish a Constitutional amendment to outlaw abortion federally in all fifty states. In my scenario, grassroots efforts on a state by state basis could establish the same. What has more a likelihood of happening? No matter how you look at it, there is much more probability of success getting laws enacted at the state level than in waiting around for a Constitutional amendment - and it would take an amendment. Overturning Roe v. Wade would simply return power of abortion to the states; to actually ban it federally, a Constitutional amendment would probably be needed; either that, or an about-face on the part of the Supreme Court that has not been seen since the aftermath of the Civil War.

It may be said that the prohibition of abortion at the state level will never be as certain as a federal ban, since state laws are more easily changed.

To this I say, "Amen! State laws are more easily changed, which is why we have a greater chance of outlawing abortion on a state by state approach than on a federal one." But once abortion is banned at the state level, will not pro-abortion advocates redouble their efforts to overturn these laws?

This is possible of course. But I would say let us at least settle for a state ban before we start arguing about the certitude of the ban. Ultimately, our efforts at ending abortion cannot rely on enforcement by the Rule of Law alone. If we have a population that is 55% in favor of abortion, we cannot simply pass laws against abortion and expect the 55% to be content. The key, in conjunction with passing laws, is to change our culture to the point where the majority of the populace no longer views abortion in a positive light.

This is possible working in the framework of a federalist solution. A great example is corporal discipline of students in the public school. As we all know, it used to be widely condoned for teachers and administrators at public and private schools to beat pupils who were unruly or disobedient. My father tells me stories of how his high school teachers used to send troublesome students down to the wood shop where they would be told to cut out a huge paddle, which they would hand over to the principal and be told to "grab their ankles" while the administrator whacked their rear end so hard it would bring tears to your eyes, or so my father tells me.

In most school districts around the country these laws have since been superseded. I don't know of any state or school district that still allows beatings of students. The culture has changed to such a degree that society would no longer tolerate it; whether this change is for better or worse I leave to you, but the fact is that a systematic change in the culture led to an abolition of this practice on a state by state level. Even in those states where these laws are still on the books (and Michigan is one), they are not enforced. Corporal punishment in school is gone and is never coming back anytime soon, as it needed no federal action. A simple change of disposition on the part of the public, coupled with grassroots efforts, sufficed.

A similar extinction of abortion would be possible in a federalist solution. The Pro-Life movement could refocus its efforts to state laws, and through a gradual effort that would take much prayer in addition to activism, hopefully the culture would gradually come to see abortion as unacceptable almost as surely as slavery and corporal punishment in school are seen as unacceptable. Some may scoff at the idea of changing the culture in such a way; but I say, if it be impossible to change the culture through our prayers and deeds, to what end do we labor? Do not all our prayers and labors presuppose that such a national change of heart is possible?

A final objection could be that a federalist solution to abortion would render the Union into two hostile camps - Pro-Life states and Pro-Choice states - not too dissimilar to that tragic and divisive separation which characterized our nation in the decades leading up to the Civil War. Such a hostile division would weaken our national unity rather than strengthen it.

While I grant that our nation may indeed have another civil war, I doubt it will be solely over abortion, although abortion may be part of it. Yet, even if so, the issue of slavery in this country was not settled save by Civil War; it was only after 1865 that a federal solution to the question of slavery could be found. If there is a way in which abortion can be banned at the federal level, it will only come through either a near miraculous conversion of the entire country or else in the aftermath of a dreadful civil war. I doubt whether the Pro-Life movement has the backbone for a civil war, especially after painting themselves into a corner by definitions of just war and self-defense that are so narrow as to practically necessitate an aggressor be on top of you stabbing you to death before you are allowed to retaliate; even so, if a federalist solution to abortion leads to a further polarization of the country, I say so be it.

To sum up: while it is admirable to push for a federal ban on all abortions, such a ban is not likely to ever materialize. We will have a much better chance of getting rid of abortion by first returning abortion legislation to the power of the states and then attacking it state at a time. This not only will not increase the amount of abortions, but will actually result in a net decrease. Meanwhile, the Pro-Life movement can work on attacking the remaining state strongholds of abortion and changing the cultural dialogue about abortion until the time comes when abortion is as little tolerated as slavery or corporal punishment in school. Since this is the case, those who are in favor of the federal ban/Constitutional amendment approach ought not to denigrate those who propose other solutions, nor should the Pro-Life credentials of candidates be questioned who propose returning the power of abortion legislation to the states. It is a viable option and should be regarded as such, in my humble opinion.

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