If you’re tired of reading this exchange on federalism and social issues, read my piece today about trial lawyer Fred Baron. My emailer again (whose emails I always appreciate, in case people can’t tell from the fact that I’m spending so much time on them today):
Let me just say that I feel strongly that if a state passes a law which seriously infringes upon the rights to life or liberty of free citizens, then the Federal government has an interest in acting. You mentioned child abuse. If a state or states made child abuse legal (or at least decriminalized it), then I would have no problem with the Feds stepping in and saying, “You can’t do that.” States may have different laws regarding child abuse, but all of them criminalize it and punish offenders in at least a minimally acceptable manner.
Yes, if abortion were only legal in one state, then it might be easier as a practical matter to fight it in that one state. But if the effort were unsuccessful, or if other states started hinting that they, too, would like to legalize it, then an amendment would be in order.
In this case, abortion is legal in all 50 states thanks to the Roe decision. If Roe were overturned tomorrow, it would have the same effect as a constitutional amendment assigning the matter of abortion to the states. We could probably expect that about half the states would then outlaw abortion outright, with a few more severely restricting it. So there we would sit, with millions of babies continuing to be killed. I just don’t see this as a tenable position, any more than was the position of those who felt that slavery and Jim Crow should have been left to the states.
My response: The question in our debate has not been whether it would be wrong for the federal government to step in one or more states legalized abortion or child abuse; it has been whether it would be wrong for it not to step in.
Pro-lifers have spent more time and energy over the last 20 years trying to get Roe reversed than trying to pass a Human Life Amendment. The movement is theoretically on the same page as my e-mailer: Most pro-lifers do seem to think that to move away from a constitutional ban, at least as a long-term goal, is a surrender of principle. Practically speaking, the movement has for the most part been trying to get the issue back to the states. (I don’t think the campaign for federal and state bans on partial-birth abortion invalidates this point.) I don’t think this has been a retreat from principle.
In a post-Roe world, a few states might generally ban abortion, several would generally permit it, and many would regulate it much more than they do now. Pro-lifers would work in those states to get as much protection for the unborn as possible. They might find that calling for a federal constitutional ban on abortion was an important part of their strategy in getting more protection. But while they worked for that long-term goal, they would be trying to ban it state by state. If they were successful in the constitutional campaign, presumably they would first have to be successful in many states.
By the time you could amend the Constitution, you would have to have most states in the pro-life camp already. Maybe–this is a fantastically optimistic projection, but the idea that you would be near ratification of the amendment is fantastically optimistic to begin with–you would have six states left that allowed abortion. Under those circumstances, it might well make sense to have a federal constitutional amendment. It would give the pro-life policy more durability, include those states even if majorities there were recalcitrant, etc. On the other hand, it might still work better to work within those six states. Maybe by that point you would have a consensus in 44 states to ban abortion, but still have many voters there who find the idea of amending the Constitution radical, or don’t wish to dictate to other states’ citizens; or maybe there would be other factors that made an amendment harder to accomplish. (I’m not saying those voters’ judgments would be right.) Maybe, even under those circumstances, it would be wisest of pro-lifers not to go the federal constitutional route, or at least not to put 9/10ths of their energies into that effort.
You could end the day banning abortion in all fifty states; or banning it in the federal Constitution; or just working forever to change the law in those states. Throughout any of these possible future histories, pro-lifers could have done everything in their power at every point to protect unborn life without ever necessarily making a big push to amend the federal Constitution. How best to advance the principle that unborn life must be protected in law is itself a question of prudence, not principle.