THE ABORTION issue, ever controversial, is reaching a new crisis, with the Supreme Court set to hear arguments on the federal ban on so-called "partial birth" abortions in the fall. Additionally, the state of South Dakota has passed an abortion law which directly imitates the law struck down in 1973's Roe v. Wade. These new challenges are inspired by recent changes in the membership of the Supreme Court, with two new conservative justices appointed by the anti-Roe President George W. Bush.
As a nation, we have now been arguing intensely over abortion for over 30 years, and the debate has not moved forward at all. On the contrary, the same issues are being rehashed over and over: Is the fetus a human being? Does the procedure have medical value? Worse still, it is getting more and more difficult to pretend that this issue means as much as the interest groups make of it. While it is easy to fault liberals for their occasionally over-emotional and obsessive defense of Roe v. Wade, Republicans and conservatives shoulder much of the blame for the intractable nature of the controversy. What could have been a relatively painless process of state-by-state reform (several states had legalized abortion before Roe) has become a protracted national controversy. In their search for national issues to energize the electorate, Republicans as well as Democrats sold out principles of federalism and opted for stances designed to exacerbate the controversy.
Let us be clear: The importance of the abortion issue is routinely overstated. Even though abortion is legal in principle, moral stigma and financial cost routinely prevent women from having access to this procedure. The state of South Dakota, for example, has but one abortion clinic that imports doctors from Minnesota and can only perform abortions once a week. Even if Roe v. Wade were overturned, many, if not most, states would keep the practice legal.
The real problem with Roe v. Wade was that it blatantly ignored principles of federalism. As liberals seeking social change have come to realize, the American federal system allows state-by-state experimentation with social policy, as opposed to imposing a solution from Washington. This promotes flexibility and contains cultural conflict because states can establish different rules to fit their own cultural mores. What is morally acceptable in Washington, D.C. is different from what is acceptable in Culpeper; the federalism principle does not force Culpeper to obey Washington, D.C.'s moral dictates, and vice versa.
Roe v. Wade choked off this process as it was unfolding across the several states.
The federal partial-birth abortion ban, supported by almost every Republican in Congress, utterly abandons federalism by imposing a national restriction on this practice. Moreover, it dubiously extends the constitutional power to regulate interstate commerce to transactions between doctors and patients which have no interstate implications. While the commerce power has been used to regulate morality in the past (as in the Comstock laws, which banned the sending of obscenity through the mail system) it has always been tied to an interstate jurisdictional element. Partial-birth abortions do not constitute commerce between the states, and the Republican Party, ostensibly the party of federalism and limited government, abandoned its own philosophy in passing the federal ban.
The federal partial-birth abortion law is only the latest step by the Republicans to make abortion into a national issue. The George H.W. Bush administration, looking for a political issue going into the 1992 election, exerted pressure on the Supreme Court to formally overturn Roe v. Wade in the Planned Parenthood v. Casey litigation -- even though Roe had effectively been gutted by an earlier case, Webster v. Planned Parenthood, which applied a very low threshold of review in upholding a set of Missouri abortion restrictions. Not satisfied with the face-saving compromise offered by Webster, which would have allowed almost all abortion restrictions without the embarrassment of actually having to declare Roe void, Bush pushed for Roe to be overturned anyway, a gamble which backfired, as the Court reaffirmed constitutional protection for abortion in Casey. The recent South Dakota abortion ban continues this tradition of trying to force the Supreme Court into directly overruling Roe, a step the Supreme Court is currently not willing to take, with five current justices committed to Roe in principle.
Federalism, a core principle of the founding generation, often seems like a relic of the past, and indeed we have moved past federalism in some policy areas, most notably federal economic regulation. But any constructive approach to cultural conflict within the United States should recognize the state-by-state reform model as potentially an effective means to resolve these controversies. The Republican Party has compromised itself on the abortion issue by abandoning this principle.
Noah Peters' column appears Mondays in The Cavalier Daily. He can be reached at npeters@cavalierdaily.com.
Read More
PATEL: Personal development courses support students beyond the gradebook
By Heer Patel | 3 days agoThe University must rethink its approach to education beyond traditional major-specific requirements and mandate personal development courses.
EDITORIAL: Commercialization threatens U.Va.’s educational mission
By Editorial Board | 4 days agoAfter all, measuring the University’s worth in terms of accrued capital, operational efficiency and numerical rankings molds this space into just another cookie-cutter institution.
YOUNIS: Why every U.Va. student should say yes to English
By Ayat Younis | January 9, 2025Every student at the University, regardless of their primary field of study, can professionally and academically benefit from engaging with the English department.
