I am with Charlie and Andy, and at odds with our editorial, on Senator Lindsey Graham’s 15-week national abortion ban. Both of them make a strong constitutional case against legislating abortion nationally even if we agree with the underlying policy. But it’s also important to emphasize that leaving matters to the states is a good idea in and of itself, not merely because it’s what the framers of the Constitution outlined.
For decades, in arguing against Roe, conservatives rightly argued not only that it was legally suspect, but that contentious issues such as abortion should be resolved at the state level. The problem with Roe wasn’t merely that it was a gross act of judicial overreach — which it was — but also that it created a one-size-fits-all standard on abortion, rather than a policy that allowed for significant cultural and regional differences. The general assumption post-Roe was that there would be much looser abortion laws in, say, Massachusetts and New York than in Alabama or Mississippi. The overturning of Roe was, as I put it, the greatest victory in the history of the conservative movement, which involved decades of work. While having a baseline standard of banning abortion at 15 weeks is perfectly sensible and broadly in line with public opinion, the only way to implement any sort of policy and make it last is to do the hard work of making the moral case against abortion and doing so even in the most hostile places — demonstrating the sheer barbarism of what’s happening in, say, Maryland, home to an “all-trimester” clinic that offers abortions up to 34 weeks of gestation.
One of the reasons our politics has become more divisive is that the federal government has usurped too much control over policy matters that are best left to state and local governments, raising the stakes of national politics. Whenever conservatives abandon their commitment to federalism because doing so would advance a preferred policy outcome, they erode their credibility in arguing against federal intervention in other areas, in which they are opposed to the outcome. Should conservatives embrace a 15-week abortion ban, they won’t be able to make federalism arguments against a Democratic standard of abortion on demand throughout pregnancy — or on a host of other national laws that would be better off as state issues.
Any such argument often triggers a response of: Liberals do what they want at the national level, and so conservatives shouldn’t unilaterally disarm when it comes to our priorities. But history has told us that there is always room for the other side to become more extreme. There were many conservatives during the Trump era — as well as Donald Trump himself — arguing for Republicans to blow up the filibuster to pass their agenda when they had unified control. One of the core arguments was that Democrats wouldn’t hesitate to do so the second they took over. But Republicans avoided blowing up the filibuster and Democrats were unable to do so when they took over. Had Republicans pursued an outcome-based approach then, we’d be much worse off now.
Conservatives would be much better served by firmly adhering to federalist principles, even when it means they don’t always get the outcome they want.