Michael Bauman | Politics | The Chronicle of an Undeception

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	"Abortion and the States: One More Lap Around the Track -- or Worse" As was the case in each election cycle for the last 30 years, abortion remains an issue. This time, some candidates suggest that we return the issue of abortion to the various 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, because the US Constitution does not specifically delegate resolving the abortion issue to the federal government, and because the Constitution does not prohibit delegating the resolution of this issue to the states, this issue ought therefore to be decided by the states themselves. Why this proposal will not work, and why we ought not support it, is the burden of this brief essay. 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 am unconvinced of its wisdom and utility. Here's why: Just as we could not have free-slavery states and no-slavery states and base that proposition on the 10th amendment, even so we cannot have free-abortion states and no-abortion states 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 are human persons entitled to all the privileges and protections afforded them in the US Constitution, then we can't treat them as mere property suitable for buying and selling in other states. Either blacks are human beings under the Constitution, with all the rights and privileges that high status affords them, or they are not -- regardless of what this or that state decides. If buying and selling blacks is a crime punishable by fine and/or imprisonment in some states but not in others, where persons involved in the same heinous activity go free (and where that activity is a legally protected activity), then those who are convicted in anti-slavery states will 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 pro-slavery states, and found their way to no-slavery 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 can or you cannot sell blacks because either they are or they are not full human persons with rights and privileges accorded to them by the Constitution. Slavery is not an issue to be settled in different ways by different states. It quickly and inescapably returns to the national level for resolution. 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 resolving the issue wisely for all states at once, and in the same way for them all, the Framers made the Civil War train wreck virtually inevitable. The flawed reasoning that stood behind, and attached to, the Three-fifths Compromise was to blame. By the same reasoning, as the candidates who advocate sending abortion back to the states rightly imply, some states (presumably like Utah) would likely declare that the unborn are human persons deserving of full protection. If so, then fetuses cannot also be non-persons suitable for termination in other states. If the unborn are legally-defined human persons, then aborting them would be to deny them due process and equal protection under the Constitution. But if the fetus is not a human person, as other states would likely decide (presumably Vermont), then abortion is a Constitutionally protected activity, and the states that outlaw it and that punish those who practice it are working against the Constitution, and the rights and protections it affords, because those states that outlaw it would be infringing upon the rights of doctors to practice medicine and of women to make their own reproductive choices. 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 Supreme Court 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 US Constitution, you can't abort it, no matter what your state says. If it is not, as a US citizen you can't be sent to jail for aborting it because aborting it is a Constitutionally protected activity, just like performing appendectomies. 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, which gets us right back where we have been since 1973 and the Roe v. Wade decision. Going to the states under the 10th amendment cannot work because either you have or you have not the Constitutional right to terminate pregnancies without penalty, and because either the unborn are or not entitled to due process and equal protection. 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 rumblings, 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 conservatives get rightly agitated, almost militant, when you threaten their 2nd amendment right to bear arms, some folks (generally on the left) get equally as agitated and militant when you threaten their alleged right to abort. This proposal pits state against state, and definitions of personhood, of abortion, and the delineation of crimes and punishment of some states against those of other states, a conflict that must be resolved nationally -- and that's where we already are now, even before we try this ill-conceived proposal for state-level resolution. Remember, abortion was a state issue before Roe v. Wade, but it couldn't stay one. It won't be any different now. The substance of this idea was in effect before, and it didn't work. In short, to advocate sending the abortion issue back to the states to decide is an ill-conceived policy recommendation. It's simply a needless lap around the track, one that brings us back to where we now are, and have been for many years, or else to a place that might actually be worse, no matter which side of the abortion issue you are on. I do not think Lincoln made slavery a national issue. By means of the Three-fifths compromise, the Framers did. (By means of their failure to do what the Constitution required them to do, something they agreed with all the states in the Union to do, the southern states unintentionally underscored slavery's status as a national issue as well.) The eradication of slavery was a Constitutional, and therefore a national, issue years before Lincoln was even born. By doing with slavery what some suggest with abortion -- namely, letting states reach differing conclusions about it (and therefore about who is and who is not a person) -- the Framers made eventual inter-state conflict over it all but inevitable. The same will happen with abortion if it is relegated to the states for resolution. My explanation here is predicated on at least some of the states reaching conclusions and definitions noticeably different from the position that now obtains nationally (If not, there's no sense in sending abortion back to the states.), and giving their version of a Constitutional defense, which, I am supposing, would need to be something along the lines of the due process and equal protection principles I mentioned. It could be something quite different. I am speculating. But if they cannot find a reasonable Constitutional basis for, and defense of, their new position, then there is no point in sending the issue back to the states because the states' new conclusions will be overturned on the old (allegedly) Constitutional basis.
	Copyright © 2006. Michael Bauman. All rights reserved.	date modified: 5 July 2006 Website Hit Counters

As was the case in each election cycle for the last 30 years, abortion remains an issue. This time, some candidates suggest that we return the issue of abortion to the various 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, because the US Constitution does not specifically delegate resolving the abortion issue to the federal government, and because the Constitution does not prohibit delegating the resolution of this issue to the states, this issue ought therefore to be decided by the states themselves. Why this proposal will not work, and why we ought not support it, is the burden of this brief essay. 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 am unconvinced of its wisdom and utility. Here's why:

Just as we could not have free-slavery states and no-slavery states and base that proposition on the 10th amendment, even so we cannot have free-abortion states and no-abortion states 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 are human persons entitled to all the privileges and protections afforded them in the US Constitution, then we can't treat them as mere property suitable for buying and selling in other states. Either blacks are human beings under the Constitution, with all the rights and privileges that high status affords them, or they are not -- regardless of what this or that state decides.

            If buying and selling blacks is a crime punishable by fine and/or imprisonment in some states but not in others, where persons involved in the same heinous activity go free (and where that activity is a legally protected activity), then those who are convicted in anti-slavery states will 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 pro-slavery states, and found their way to no-slavery 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 can or you cannot sell blacks because either they are or they are not full human persons with rights and privileges accorded to them by the Constitution. Slavery is not an issue to be settled in different ways by different states. It quickly and inescapably returns to the national level for resolution. 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 resolving the issue wisely for all states at once, and in the same way for them all, the Framers made the Civil War train wreck virtually inevitable. The flawed reasoning that stood behind, and attached to, the Three-fifths Compromise was to blame.
            By the same reasoning, as the candidates who advocate sending abortion back to the states rightly imply, some states (presumably like Utah) would likely declare that the unborn are human persons deserving of full protection. If so, then fetuses cannot also be non-persons suitable for termination in other states. If the unborn are legally-defined human persons, then aborting them would be to deny them due process and equal protection under the Constitution. But if the fetus is not a human person, as other states would likely decide (presumably Vermont), then abortion is a Constitutionally protected activity, and the states that outlaw it and that punish those who practice it are working against the Constitution, and the rights and protections it affords, because those states that outlaw it would be infringing upon the rights of doctors to practice medicine and of women to make their own reproductive choices.
            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 Supreme Court 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 US Constitution, you can't abort it, no matter what your state says. If it is not, as a US citizen you can't be sent to jail for aborting it because aborting it is a Constitutionally protected activity, just like performing appendectomies. 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, which gets us right back where we have been since 1973 and the Roe v. Wade decision. Going to the states under the 10th amendment cannot work because either you have or you have not the Constitutional right to terminate pregnancies without penalty, and because either the unborn are or not entitled to due process and equal protection. 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 rumblings, 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 conservatives get rightly agitated, almost militant, when you threaten their 2nd amendment right to bear arms, some folks (generally on the left) get equally as agitated and militant when you threaten their alleged right to abort.
            This proposal pits state against state, and definitions of personhood, of abortion, and the delineation of crimes and punishment of some states against those of other states, a conflict that must be resolved nationally -- and that's where we already are now, even before we try this ill-conceived proposal for state-level resolution. Remember, abortion was a state issue before Roe v. Wade, but it couldn't stay one. It won't be any different now. The substance of this idea was in effect before, and it didn't work.
            In short, to advocate sending the abortion issue back to the states to decide is an ill-conceived policy recommendation. It's simply a needless lap around the track, one that brings us back to where we now are, and have been for many years, or else to a place that might actually be worse, no matter which side of the abortion issue you are on.

I do not think Lincoln made slavery a national issue. By means of the Three-fifths compromise, the Framers did. (By means of their failure to do what the Constitution required them to do, something they agreed with all the states in the Union to do, the southern states unintentionally underscored slavery's status as a national issue as well.) The eradication of slavery was a Constitutional, and therefore a national, issue years before Lincoln was even born. By doing with slavery what some suggest with abortion -- namely, letting states reach differing conclusions about it (and therefore about who is and who is not a person) -- the Framers made eventual inter-state conflict over it all but inevitable. The same will happen with abortion if it is relegated to the states for resolution.

My explanation here is predicated on at least some of the states reaching conclusions and definitions noticeably different from the position that now obtains nationally (If not, there's no sense in sending abortion back to the states.), and giving their version of a Constitutional defense, which, I am supposing, would need to be something along the lines of the due process and equal protection principles I mentioned. It could be something quite different. I am speculating. But if they cannot find a reasonable Constitutional basis for, and defense of, their new position, then there is no point in sending the issue back to the states because the states' new conclusions will be overturned on the old (allegedly) Constitutional basis.