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Thursday, September 06, 2012

Should Pro-Federalism-Oriented Abortion Opponents Vote for the Democrats?

With some trepidation, I thought I'd link to this post from my friends at Mirror of Justice on the Democratic and Republican platform positions on abortion. My interest is not in the abortion issue or in the question of whom to vote for, but in the fact that the Republican platform plank purports to reject the "federalism" argument on abortion: that the natural and appropriate thing is to return the abortion issue to the individual states. As I read it, it not only rejects that view in favor of a single national rule outlawing abortion, but also argues that this position is what the Fourteenth Amendment currently requires. As it turns out, I think platforms are highly imperfect ways to gauge much other than some combination of what parties purport to believe and what they are willing to trade away to particular wings of the party in exchange for not paying much attention to them later, other than to hand over a cabinet department or two. And notwithstanding the title of this post, I doubt the pro-federalism position is one taken by many Democrats. But since the title of the post at MoJ suggested that the platform language speaks for itself, I thought I would go ahead and listen.    

Posted by Paul Horwitz on September 6, 2012 at 09:17 AM in Paul Horwitz | Permalink

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Who are these "Pro-Federalism-Oriented Abortion Opponents" of which you speak and why in the world would they think that states have the power to legalize abortion? I can see a pro-federalism *Roe v. Wade* opponent disagreeing with the Republican platform. But if you believe that abortion is the wrongful taking of a human life (which I don't incidentally), it is perfectly consistent to believe that the 14th Amendment grants the federal government the power to illegalize abortion and prohibits states from legalizing it, while also being generally pro-federalism.

Posted by: AF | Sep 6, 2012 12:04:44 PM

Does anyone who isn't a law professor actually care about federalism in and of itself except when they think federalist arguments will facilitate a substantive policy aim? People only make federalist arguments when they think their state's politics are closer to their own than the nation's politics are. Thus, anti-choicers make state's rights arguments on abortion when they think state government power would result in abortion bans, and liberals make state rights arguments on drug laws when they think that state government power would result in fewer drug restrictions.

Posted by: Anon | Sep 6, 2012 10:14:12 PM

Does anyone who isn't a law professor actually care about federalism in and of itself except when they think federalist arguments will facilitate a substantive policy aim? People only make federalist arguments when they think their state's politics are closer to their own than the nation's politics are. Thus, anti-choicers make state's rights arguments on abortion when they think state government power would result in abortion bans, and liberals make state rights arguments on drug laws when they think that state government power would result in fewer drug restrictions.

Posted by: Anon | Sep 6, 2012 10:14:13 PM

Hi Paul -- I have reservations about the argument that the 14th Amendment *requires* states to provide "equal protection" from violence to unborn chidlren, but it seems to me that AF is right: There doesn't seem to be any inconsistency in thinking "federalism and enumerated-powers matter, and the national government may only do what the Constitution actually authorizes it to do" and "because unborn children are persons, one of the things the national government is authorized to do is to enforce the 14th Amendment and require states to protect them equally." No?

Posted by: Rick Garnett | Sep 7, 2012 9:44:43 AM

Two points: I agree that as a practical matter there are probably few people who are going to adopt "federalism or death" as a battle cry, and certainly not on issues like this. And since federalism doesn't preclude the idea that some issues are settled for all as a matter of fundamental rights, I also agree that it is possible to believe, for instance, that federalism is generally good but that whether political speech should be capable of state censorship should not be a matter subject to local variation. My observation was narrower. In the public argument over abortion, or at least the more high-minded sectors of that debate, it is sometimes suggested (or so it seems to me) that, for instance, regardless of one's views on abortion Roe v. Wade is a weak opinion, and in any event its reversal would not mean that abortion is illegal, but only that the matter ought to be fought out within the states. What I take from the platform statement is that the platform drafters disagree with this and consider abortion not only to be something that ought to be unlawful everywhere, but that under a proper reading of the 14th amendment it is currently unlawful everywhere. (With what implications for cases of rape and incest, I am unsure.) The American two-party system being what it is, I think I can ultimately say with confidence that there *is* no single, clear, consistent or coherent "Republican position" on abortion. But to the extent that someone (if any such person exists!) opposes (or supports) abortion rights, but believes that it is not dealt with by the Constitution and ought to be resolved through politics rather than constitutional law, the Republican platform statement ought to be unacceptable. Perhaps my headline would have been better if it involved abandoning the Republican party rather than voting for the Democrats. But given how forceful Greg was in his "speaks for itself" headline, I figured I ought to point out that if the GOP platform speaks for itself, then it should be recognized as a clear rejection of any "reversing Roe is not a big deal -- it just leaves it to the political process" arguments.

Posted by: Paul Horwitz | Sep 7, 2012 10:02:38 AM

It is true that many opponents of Roe condemn it as "denying the right of the people to vote on the issue." (e.g. Mitt Romney's good friend Edward Conrad in his recent book.) It'd be interesting to see whether such people have a consistent reaction to the Republican platform. (Incidentally, I think the equal protection argument is as weak as the privacy argument in Roe, but I'm not sure that's what this thread should be about.)

Posted by: Andrew MacKie-Mason | Sep 7, 2012 6:11:22 PM

It is annoying that pro-choicers are put in the position of defending Roe v. Wade as if a sacred thing when it was a terrible opinion for the mostly right result. However, absent a better opinion with the same or improved effect, the Supreme Court is still all that stands between the evangelical theocrats and abortion bans and/or severe restrictions in much of the country and the possibility for a federal abortion ban as a central election issue.

Frankly the right argument prohibiting bans on abortion is equal protection and a due process right to bodily integrity rather than a due process right to privacy...but mainstream pro-choicers have gotten to wimpy to make those arguments.

Posted by: Anon | Sep 7, 2012 10:25:42 PM

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