Home » Academics » Lecture Hall

The State of Abortion: Who Should Decide?

Editor's note: As of this writing (July 2007), the U.S. Supreme Court determines abortion policy in the land. In the event that the Court relinquishes this hold on abortion policy by overturning Roe v. Wade and Doe v. Bolton (1973), the issue will likely go back to the states. At that time, some states will restrict or ban abortion, while others will not. In the absence of an opportunity to pass an amendment to the U.S. Constitution declaring that human life begins at fertilization (personhood), state-by-state battles are likely and will save innocent human life. Focus on the Family supports the pursuit of opportunities on both the state and federal levels.

Abortion and the 10th Amendment

As has been the case in each election cycle of the last 30 years, abortion is a major issue. This time, some candidates suggest that we return the issue of abortion to the states for resolution, and thereby keep the federal government out of it. They suggest that we do so on the basis of the 10th Amendment, which says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

According to the candidates who support this idea, the issue ought to be decided by the states themselves because the U.S. Constitution neither A) specifically delegates to the federal government the resolving of the abortion issue, nor B) prohibits delegating its resolution to the states. Why I believe a federal solution is our best option is the burden of this brief article.

Parenthetically, my concern here is not to name those candidates who support this proposal and therefore to publicly stand against them, but to assess the proposal itself. While I am pleased to stand with those who wish to stop abortion (or at least to radically curtail it), and while I am quite pleased to assume or to acknowledge the patriotism and good will that stands behind this proposal, I do not think it will prove to be the ultimate solution. Here's why:

A Constitutional Primer: Slavery

We could not have slave states and free states and base that proposition on the 10th Amendment. Even so we will not likely have, on my view, states with abortion on demand and states where abortion is illegal and base it on the same text. In both cases, the "Who is a human person?" issue makes it impossible.

If, for example, blacks in some states were human persons entitled to all the privileges and protections afforded them in the U.S. Constitution, then we couldn't treat them as mere property suitable for buying and selling in other states. Either blacks were human beings under the Constitution, with all the rights and privileges that high status affords them, or they were not — regardless of what this or that state decided.

If buying and selling blacks was a crime punishable by fine and/or imprisonment in some states but not in others, where persons involved in the same heinous activity went free (and where that activity was legally protected), then those who were convicted in anti-slavery states could appeal their case all the way to the Supreme Court in order to establish that by these punishments their rights were violated.

By the same token, slaves who escaped captivity in slave states, and found their way to free states, would seek to invoke their constitutional rights to freedom. Slave owners would do the same, insisting that their "property" be returned to them. In other words, either you could or you could not sell blacks because either they were or they were not full human persons with rights and privileges accorded to them by the Constitution. Slavery was not an issue to be settled in different ways by different states. In the case of slavery, the national resolution came legislatively, judicially and militarily. But it couldn't be assigned for resolution at the state level because it involved human personhood — and more.

Trying to resolve it or, more accurately, choosing to postpone resolving it (as the Framers did) by letting the different states maintain their own anti-slavery or pro-slavery policy for years, did not work. By not wisely resolving the issue for all states in the same way and at the same time, the Framers made the train wreck that was the Civil War virtually inevitable. The flawed reasoning they stood behind, and attached to, the Three-fifths Compromise was to blame.¹

Take It to the States?

By the same reasoning, as the candidates who advocate sending abortion back to the states rightly imply, some states (presumably Utah) would likely declare that the unborn are human persons deserving of full protection. If a state were to make such a decision, then fetuses could not also be non-persons suitable for termination in other states. If the unborn are legally-defined human persons in one state, then aborting them in another would be to deny them due process and equal protection under the Constitution.²

But if the fetus is not a human person, as other states would likely decide (presumably Vermont), then abortion would be a constitutionally protected activity. The states, then, that would outlaw it and punish those who practice it would be working against the Constitution and the protections it affords — infringing upon the rights of doctors to practice medicine and of women to make their own reproductive choice.

In other words, such cases will quickly and predictably reach the Supreme Court, where once again this issue of human personhood will be decided for us all. The Court's decision then will become the law of the land — all the land — again. It seems inescapable. If the fetus is a human person under the U.S. Constitution, you can't abort it, no matter what your state says. If it is not, as a U.S. citizen you can't be sent to jail for aborting it because doing so is a constitutionally protected activity, just like performing appendectomies. In my opinion, if we set the resolution of the abortion issue at the state level, the Supreme Court would soon be called upon to adjudicate — nationally and definitively — both the rights of the unborn and of those who terminate the unborn. And then we're right back where we have been since 1973 and the Roe v. Wade decision.

Going to the states under the 10th Amendment, though it will save lives in the short term, may not be the long-term solution. Either you have or you don't have the constitutional right to terminate pregnancies without penalty, and either the unborn are or are not entitled to due process and equal protection.

Abortion: It's a Supreme Court Thing

Should such a case reach them, perhaps the Supreme Court will decide the matter in a pro-life way this time; perhaps not. If they do not, then the pro-life issue is deeply injured because there will have been what amounts to two Roe v. Wade decisions, only the second one would not likely have the flawed and attackable legal reasoning of Roe. Surely that loss would be practically irreparable. But if the Court does adjudicate the issue in a pro-life way, then perhaps we will be faced with a second round of states seeking secession. In Vermont, there already are such rumblings³ — and that's without abortion being decided against them. The constitutional crisis we'd then face would be enormous, just as it was in the 1860s.

Just as some conservatives get agitated when you threaten their 2nd Amendment right to bear arms, some folks (generally on the left) get equally agitated when you threaten their alleged right to abort.

This proposal pits state against state: definitions of personhood, of abortion and the delineation of crimes and punishment of some states against those of other states. This is a conflict that on my view, will likely be resolved nationally — and that's where we already are, even before we try for a state-level resolution. Remember, abortion was a state issue before Roe v. Wade, but it couldn't stay one. It likely won't be any different now. The substance of this idea was in effect before, and it didn't last.

A Lasting Impression

C O F F E E  S H O P

---

At what level of government should the abortion issue be resolved?

Join the discussion!

In short, to advocate sending the abortion issue back to the states to decide will indeed save some lives. And that's a good thing. I just don't think it will last. In the end, it will be another lap around the track, one that brings us back to where we are now, and have been for many years. Or, in my opinion, it brings us to a place that might actually be worse — no matter which side of the abortion issue you are on.