Federalism

Open Hearts, Open Minds, Closed Policy

Federalizing the abortion issue contributes to the acrimony Obama decries.

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During the commencement speech in which President Obama urged greater civility in the abortion debate, he was interrupted by cries of "baby killer," "abortion is murder," "stop killing our children," and "you have blood on your hands." The passion displayed by the protesters at the University of Notre Dame on Sunday suggests that calling for "open hearts, open minds, [and] fair-minded words" will get you only so far on this subject.

To his credit, Obama acknowledged as much. "No matter how much we may want to fudge it," he said, "the fact is that at some level the views of the two camps are irreconcilable." But he did not acknowledge the extent to which he and other supporters of abortion rights have contributed to the rancor by federalizing an issue that should be left to the states.

For the last 36 years, on the strength of a hazily reasoned Supreme Court ruling, federal judges have been micromanaging state abortion regulations, deciding which are justified and which go too far. Since the U.S. Constitution does not address abortion one way or another, these determinations seem arbitrary, driven by individual policy preferences instead of intellectually honest legal interpretation.

This usurpation explains why we do not think it odd for presidents (or presidential candidates) to make pronouncements about an issue that is beyond the powers granted to the federal government by the Constitution. For his part, Obama surely plans to nominate a replacement for retiring Supreme Court Justice David Souter who will provide a reliable fifth vote for upholding Roe v. Wade. His supporters would be outraged if he didn't. Anti-abortion activists will be outraged when he does.

There's no getting around the fact that if you truly believe abortion is murder, you will not be satisfied until it is banned completely (perhaps with a self-defense exception in cases where the mother's life is threatened by the pregnancy). Nor will you be much moved by calls for less stridency and more civility, except perhaps for tactical reasons. At the same time, it's clear that a major reason for the anger of abortion opponents is the sense that a vitally important area of public policy has been improperly transferred from their democratically elected state legislators to a cabal of federal judges appointed for life.

Furthermore, because abortion policy is set at the national level now, anti-abortion activists have responded with blatantly unconstitutional measures of their own, such as the Partial Birth Abortion Ban Act. In 2007 the Supreme Court upheld this law, which prohibits a particular late-term abortion method, as consistent with Roe v. Wade, when it should have been overturned on the grounds that it clearly exceeds the authority to "regulate commerce…among the several States," the constitutional power on which it was ludicrously based.

The federal ban on "partial birth" abortion, together with similar state laws, suggests the pro-life side may be winning, an impression reinforced by Gallup Poll results released last week. For the first time since the organization began asking the question in 1995, the percentage of Americans who identified themselves as "pro-life" outnumbered those who identified themselves as "pro-choice."

Yet only a fifth or so said abortion should be banned in all cases, essentially the same as the share who said it should always be allowed. The real action remains in the middle, with the 53 percent who said abortion should be legal in some circumstances. Exactly what circumstances those are is a question that should be worked out at the state level, and no doubt the answer would be different in Utah than it would be in Massachusetts.

The results of this process would not fully satisfy anyone, but allowing it to happen would go a long way toward reducing the acrimony associated with this issue. When abortion laws throughout the country hinge on a single judicial nominee, it's not a situation conducive to "open hearts" or "fair-minded words."

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.

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  1. But he did not acknowledge the extent to which he and other supporters of abortion rights have contributed to the rancor by federalizing an issue that should be left to the states individuals.

  2. But he did not acknowledge the extent to which he and other supporters of abortion rights have contributed to the rancor by federalizing an issue that should be left to the states individuals.

  3. Since when is murder not a federal crime?

  4. Since the U.S. Constitution does not address abortion one way or another

    Except the Preamble that names the purpose of the Constitution to “secure the Blessings of Liberty to ourselves and our Posterity,” and Amendments 5 and 8.

  5. Since when is murder not a federal crime?

    1776.

  6. Since when is murder not a federal crime?

    While there are a great many more federal crimes than I would like, there is still no general law against murder at the federal level.

    When JFK was assassinated the only crime that Lee Oswald could be charged with was murder under Texas law.

    He had broken no federal law.

    Of course in the followup to the martyrdom we were treated to a federal law against killing the president plus a shiny new gun control law.

  7. If this is an easy issue for you, you haven’t thought about it enough.

    He says the 2 camps have irreconcilable views? My own mind has 2 irreconcilable views.

    Of one thing I’m certain, though. Each state must make their own decisions here. Isn’t that the real freedom of choice?

  8. Each state must make their own decisions here. Isn’t that the real freedom of choice?

  9. Good morning, Ma’am.

    Heard you had a miscarriage. Can you prove it?

  10. he and other supporters of abortion rights have contributed to the rancor by federalizing an issue that should be left to the states. . .

    At the same time, it’s clear that a major reason for the anger of abortion opponents is the sense that a vitally important area of public policy has been improperly transferred from their democratically elected state legislators to a cabal of federal judges appointed for life. . .

    The results of this process would not fully satisfy anyone, but allowing it to happen would go a long way toward reducing the acrimony associated with this issue. . .

    You made this point so many times that I expected to find some evidence of your assertion. Is that asking too much?

  11. I will now list all the names of the opponents of abortion that oppose it solely on the basis that it should be a state’s rights issue:

  12. A+ Article

    (Oh, and SugarFree…. Please add my name to that list)

  13. “contributed to the rancor by federalizing an issue that should be left to the states.”

    The other great source of rancor is the subsidization of the operation by the taxpayers.

    Speaking as a grumpy middle aged man; I thought feminism was about a woman’s right to own her body. So why is their big issue about dealing with the results of incompetent body management i.e. “unplanned pregnancy” ? And getting the taxpayers to subsidize their incompetence?

  14. Shorter Obama: “The law, as currently interpreted, gives us everything we want, so we want this taken off the list of contentious topics, because change can only be change for the worst for us. See how wonderful I am for trying to reduce contention? You may worship my wonderfulness now.”

  15. Granite,

    Your only objection to abortion is that it was legalized by federal fiat? If the abortion issue devolved to the states you would wouldn’t be interested in limiting it in anyway?

  16. SF, it’s like this:

    If you consider it murder, it’s up to the states to prosecute. And you can’t have the choice to murder. Libertarians can agree that taking someone else’s life is an infringement.

    On the other side, states should not infringe on an individual’s constitutionally protected right to live their own life and treat their own body as they see fit.

    I can’t see a clear way around this one. In that case, I think each state should be allowed to decide if they are protecting an individual’s liberty (the fetus) or restricting it (the mother).

    Unfortunately, it is very much like the slavery debate of old. Are they property or beings? Again, I don’t think the federal government is in a position to make that judgment. Hopefully, each state would have come to that correct conclusion eventually.

    A very Jeffersonian viewpoint, I realize.

  17. As Will Saletan argues here in Slate http://www.slate.com/id/2218697/ (God, I am so conscientious), when a “pro-choice” candidate is elected, the opinion polls move “pro-life.” After the biggest Democratic win since 1964, it’s a little hard to say that Americans are increasingly opposed to abortion. Even without Roe v. Wade, federal policy would still be involved in abortions–funding under Medicaid, for the armed forces, health insurance for federal employees, yada, yada, yada, but Jacob’s main point, that Roe v. Wade was total bullshit, is right on.

    It would be infinitely better if this issue were fought out at the state level. You know, the way Ronald Reagan did, signing a “pro abortion” bill that passed the California Senate by one vote, allowing the number of legal abortions in the Golden State to increase from about 20,000 to about 200,000.

  18. Nikola T,

    All good points, and I agree with you. But that’s not what I’m getting at. I trying to point out that state’s rights isn’t even a tiny sliver of the issue, but a bloody shirt for people opposed to abortion to wave.

    Here’s the flip side of the equestion: How many of the same people grousing about state’s rights in our current political situation would raise a hue and cry about them if abortion was banned by federal law?

  19. This thread should be good for few hundred comments.

    is the extent to which he and other supporters of abortion rights have contributed to the rancor by federalizing an issue that should be left to the states.

    Roe v. Wade was a fucked up, judicially overreaching decision. I know I’m not the only pro-choicer (with morally consistent caveats) who feels this way.

    Since opinions will not be swayed, I’m not going to piss into the wind defending my position here. Have a ball.

  20. Good morning, Ma’am.

    Heard your husband had a heart attack. Can you prove it?

  21. Good morning, Ma’am.

    Heard you had a miscarriage. Can you prove it?

    Easily done. Just look at her medical records.

  22. I’m with Henry Ford. I support a woman’s right to choose, as long as it’s black.

  23. Good morning, Ma’am.

    Heard you had a miscarriage. Can you prove it?

    Good point. That used to happen all the time back when abortion was illegal.

    Oh, wait. It did no such thing.

  24. slaveholder | May 20, 2009, 8:29am | #

    Each state must make their own decisions here. Isn’t that the real freedom of choice?

    I say again, like the word godwin is used for the inevitable, inapplicable references to Nazism in internet discussions, an analogous word is required nor non sequitur references to chattel slavery.

    Beecher?

  25. Here’s the flip side of the equestion: How many of the same people grousing about state’s rights in our current political situation would raise a hue and cry about them if abortion was banned by federal law?

    While I’d have voted against the law, on states-rights grounds, if I were in Congress, once the bill passed I’d shrug my shoulders and say that it figures that if growing medical marijuana in your backyard is considered “interstate commerce,” it’s not surprising that abortion in a commercial clinic should be as well.

  26. How many of the same people grousing about state’s rights in our current political situation would raise a hue and cry about them if abortion was banned by federal law?

    I find it best when dealing with a contentious issue like this to not worry about what people would do. That type of thing tends to cloud one’s adherence to principle.

    But yes, you’re correct. Most of the people who are ardent supporters of one side of the issue or the other, haven’t fully considered principles.

    The only way I could see the federal government banning abortion would be to declare that the fetus has full rights of being. Then states would have to consider any infringement on those rights as unlawful. That, just as murder, would still be prosecuted by the states.

  27. Speaking as a grumpy middle aged man; I thought feminism was about a woman’s right to own her body.

    Surely you didn’t really believe that the “pro-choice” movement was about freedom of choice? The choice, for example, of pharmacists and physicians to refuse to have anything to do with abortion?

  28. J sub D,

    I submit that bringing up the dodge of state’s rights on the subject of slavery when pointing out the dodge of state’s rights when it comes to banning abortion is not a non sequitur.

  29. While I’d have voted against the law, on states-rights grounds, if I were in Congress, once the bill passed I’d shrug my shoulders and say that it figures that if growing medical marijuana in your backyard is considered “interstate commerce,” it’s not surprising that abortion in a commercial clinic should be as well.

    So you don’t have a state’s rights issue with the federal government violating California black letter law so they can raid the marijuana dispensaries? Federal government thinks it’s OK, so you do to?

  30. oh hay hai gaiz.

    what’s going on hier?

    *ambles off*

  31. Seamus

    Where do pharmacists and physicians not have the right to refuse to have anything to do with abortion?

    Oh, wait a minute, is it that you think that Walgreens or CVS should be forced to keep pharmacists who refuse to sell plan B on the payroll?

  32. So you don’t have a state’s rights issue with the federal government violating California black letter law so they can raid the marijuana dispensaries? Federal government thinks it’s OK, so you do to?

    You got my point exactly backwards: I’d make a big hue and cry against the case where the “interstate commerce” envelope has been pushed farthest (i.e., on home-grown medical marijuana) because I use up a lot of breath on a run-of-the-mill distortion of the constitutional grant of authority.

    (Remember when it was generally assumed that the constitution didn’t give Congress the power to regulate sale of mind-altering substances (except through taxation), so they had to amend the constitution to get federal prohibition of alcohol? Good times.)

  33. Oh, wait a minute, is it that you think that Walgreens or CVS should be forced to keep pharmacists who refuse to sell plan B on the payroll?

    No, but I want Walgreens and CVS (or, more likely, Joe’s Pharmacy) to be free to tell a customer they don’t sell Plan B. Don’t tell me that the mainstream of the pro-choice movement doesn’t want to make that illegal. I got in an argument at my law firm the other day, when it turned out that all the lawyers other than me who had an opinion at all took it as given that if a pharmacy or hospital is allowed to operate at all, then it has to provide the full range of “reproductive health services.” (The argument seemed to be that if the pharmacy or hospital accepts government benefits, then it should be subject to government direction, even if the only government “benefit” at issue here is permission to be open doing business at all.)

  34. I would have liked to comment on the baby-name thread, but instead I wish (divisively) to comment on the thread about whether these babies have, or do not have, a right not to be killed.

    ‘Shorter Obama: “The law, as currently interpreted, gives us everything we want, so we want this taken off the list of contentious topics, because change can only be change for the worst for us. See how wonderful I am for trying to reduce contention? You may worship my wonderfulness now.”‘

    I think you are being unfair. If you read Obama’s speech, you won’t see anything resembling the sentiments you attributed to the President.

    Obama does *not* want the pro-lifers to give up and go away. In fact, the pro-lifers are very useful to him, just as William Lloyd Garrison and Lysander Spooner were useful to politicians in the 1850s.

    Obama does not seek the votes, or the silence, of pro-lifers any more than politicians wanted Garrison’s vote. Properly managed, pro-lifers can serve as a perfect foil to establishment pro-abortion politicians, just as Garrison, Spooner, and their ilk, served as the perfect foil for pro-slavery politicians in the 1850s.

    When the Whig Party put language in their platform demanding the cessation of the divisive debate over slavery, they were not trying to win over the abolitionists – they were trying to isolate the abolitionists politically, while winning the votes of the great ‘moderate’ group of Americans who wished the slavery issue would go away.

    Note that these moderates did not want *slavery* to go away – they wanted the slavery *debate* to go away, because these moderates were uncomfortable with the entire issue. After all, the USA had so many *real* issues to deal with – the transcontinental railroad, the economic crisis of 1857, the Mormon revolt, the dispute over Cuban annexation – and here were these hypocritical, self-righteous, religiously-motivated wackos getting all worked up about the rights of a bunch of Negroes.

    Obama doesn’t want abortion off the list of contentious issues. He knows it is contentious and that the opposing viewpoints are irreconcilable. What he wants is for ‘moderate’ voters to support his pro-abortion position. And let us be clear – rhetorically, Obama has the advantage of many of the pro-lifers. Let’s not be shocked at this – who do you think you would come off better by the standards of ‘civility,’ in a debate between a fanatic like Garrison or Spooner and a well-spoken, classically-educated, experienced politician like James Buchanan or Jeremiah Black? Bear in mind that politicians in the 1850s had a level of articulateness and eloquence which puts modern politicians – yes, that includes Obama – to shame.

    To vary the analogy a little bit, let us look at a situation Obama invoked in his Notre Dame speech:

    ‘After all, I stand here today, as President and as an African-American, on the 55th anniversary of the day that the Supreme Court handed down the decision in Brown v. the Board of Education. Brown was of course the first major step in dismantling the “separate but equal” doctrine, but it would take a number of years and a nationwide movement to fully realize the dream of civil rights for all of God’s children. There were freedom rides and lunch counters and Billy clubs, and there was also a Civil Rights Commission appointed by President Eisenhower. It was the twelve resolutions recommended by this commission that would ultimately become law in the Civil Rights Act of 1964.’

    Here Obama is leading up to a discussion of an Eisenhower-era committee headed by Fr. Theodore Hesburgh of Notre Dame, which recommended various federal measures to enforce civil rights for black people. Obama’s point is that Hesburgh managed to bring the commissioners – who were from all sorts of different backgrounds – to a consensus that black people had civil rights which were not being enforced, and that specific federal actions were needed to enforce these rights.

    Obama wants to put forward this situation as a parallel to the abortion debate. Just as Fr. Hesburgh was able to get a consensus report in favor of civil rights from a diverse group of commissioners, likewise the American people should be able to work together on the issue of abortion.

    But as Obama acknowledges in the passage quoted above, the movement for black civil rights involved more than just commissions and committees working on consensus recommendations. There were also the ‘freedom rides and lunch counters and Billy clubs.’ The Freedom Riders, the sit-inners, the demonstrators who faced billy clubs, were many things, but one thing there were *not* was ‘civil,’ at least not in the sense used by Obama. To be sure, they practiced civil disobedience, but the kind of disobedience they engaged in violated *all* the norms of ‘civility’ as preached by Obama elsewhere in his Notre Dame speech.

    The people who committed civil disobedience on behalf of black civil rights were many things, but ironically enough, the word ‘civility’ is the last word anyone would associate with them. Is it ‘civil’ to eschew the normal processes of democratic debate and simply take to the streets in defiance of the law with the specific purpose of getting arrested?

    I’ve seen videos of the civil-rights demonstrations – I didn’t see a whole lot of civility; I saw a lot of self-righteousness by people who believed that their opinions on the equality of human beings regardless of race were more important, more valid, than the opinions of people who sincerely believed in black inferiority. And these demonstrators were very arrogant in asserting their point of view – at least, it would *look* like arrogance, from the point of view of a segregationist, or of a fence-sitter who wasn’t sure whether segregation or integration was the right answer, but who knew that he was offended by the incivility of the Negroes and Negro-lovers who (with a distinct lack of humility) felt that they were right and the segregationists were wrong.

  35. Mad Max,

    It’s interesting that you start out contesting the “Shorter Obama” summary and, by the end of your post, seem to be reinforcing it.

    You point out that the civil rights movement was anything not very ‘civil’.

    This supports the general point: A call for civility inherently favors the status quo because it is protesters against the status quo most inclined to be uncivil.

    Which is what the “Shorter Obama” summary was pointing out.

  36. Mad Max:

    Those danged upppity negroes!

  37. Fill in the blank with the appropriate racial group:

    ‘A disproportionate number of aborted fetuses are _____.’

  38. Don’t tell me that the mainstream of the pro-choice movement doesn’t want to make that illegal.

    I’ve heard this discussed and naturally would oppose it.

    But the only legislation I’ve heard about is a proposal that pharmacists be protected from being fired for refusing to dispense plan B.

    i’m afraid I’m old-fashioned that way. I don’t think employees get to dictate corporate policy.

  39. ‘i’m afraid I’m old-fashioned that way. I don’t think employees get to dictate corporate policy.’

    Nor should they – unless, of course, the employer is allowed to dip into the public treasury on the express condition that he not penalize employees for following their conscientious ethical or religious beliefs – beliefs that happen to correspond to the obligations imposed on medical profession by solemn oath for over two millenia prior to 1973.

    But how likely is it that such a scenario would transpire?

  40. “Since when is murder not a federal crime?”

    You ARE joking I hope…

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