Abortion and the States

[Ross] Matt Yglesias tries to argue that the states can’t adjudicate abortion – that there’s either a constitutional right to life, or a constitutional right to an abortion, with no room for state-by-state lawmaking in either case:

The fetus either is or isn’t a "legal person" under the 14th amendment. If it is, then clearly abortion bans are not only constitutionally permissable, but constitutionally mandatory. If it isn’t, however, then what’s the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen? It would need to be a mother-regarding health-and-safety regulation of some sort which, in the nature of things, is going to leave abortions generally legal as long as they’re being performed in a way that’s unlikely to seriously injure the mother.

But there are all sorts of laws that regulate "conduct that takes place inside the body of a right-bearing citizen" – particularly when another party (like, say, an abortionist) performs said conduct. For instance, we have laws against selling your organs, laws against prostitution, laws against assisted suicide, laws that prohibit the sale of drugs and restrict the sale of alcohol, and so on and so forth. Some of these may be bad laws, but it seems like quite a stretch to say that they’re all unconstitutional.

The smarter case for why you can’t just leave abortion to the states belongs to Will Baude, who wrote a Times op-ed a year ago arguing that "a patchwork of state abortion regulations … will lead not to compromise, but chaos," which will in turn will push the public to "demand a federal resolution to the abortion battle — again." Jeffrey Rosen made a similar point in his (subscriber-only, I’m afraid, so maybe you should subscribe) Atlantic essay on "The Day After Roe", predicting a slew of abortion battles in Congress if Roe vs. Wade ever fell, with both pro-choicers and pro-lifers attempting to ram through a national solution rather than leaving the fight to state legislatures.

Baude and Rosen may be right, though my suspicion is that there aren’t very many Senators (particularly with Rick Santorum gone!) who would relish a knock-down drag-out abortion battle, and that both national parties would have a vested interest in punting things to the states whenever possible, at least in the short term. Then again, I’m not particularly invested in whether the states or Congress make abortion law; I just the people making the laws to be subject to democratic pressures of some kind, for all the reasons Hadley Arkes lays out here:

. . . step by step, the public would get used to these cardinal notions: that the freedom to order abortions, like any other kind of freedom, may be subject to plausible restrictions; that it is legitimate for legislatures to enact those restrictions; and that it is, in fact, possible for ordinary folk, with ordinary language, to deliberate about the grounds on which abortions could be said to be justified or unjustified.

That Ezra Klein calls this description of a post-Roe world "scary for all the obvious reasons" only makes me all the more eager to see it become a reality.