Why Abortion Cannot Be Left to the States
Both the Constitution’s demand for equal protection and the demands of moral duty impel us to enact a federal ban on abortion.
With Roe v. Wade finally gone, the pro-life movement has somewhat fractured over whether abortion legislation should come from the state or federal level. This was clearly seen at the recent GOP debate in Milwaukee, where candidates sparred with each other over the federal government's role in abortion.
While some candidates, such as Mike Pence, Tim Scott, and Asa Hutchinson, came out vocally in favor of a 15-week federal ban, others focused on the issue at the state level, with Doug Burgum even explicitly condemning the idea of federal involvement.
With the debate making it clear that the pro-life movement has a lot of work to do toward building consensus, I think now would be a great time to lay out the case for why a federal abortion ban is not only constitutional but constitutionally and morally required.
First, it is important to understand the opposing view. Pro-life libertarians and small-government conservatives tend to invoke the 10th Amendment and federalism to argue that although abortion is wrong, a federal ban would be unconstitutional, and the issue needs to be left to the states.
They will argue that abortion regulation falls under police powers, which are traditionally seen as powers that the 10th Amendment leaves to the states. Just as murder is generally a state matter (barring special circumstances), abortion is similarly up to the states to prosecute or not prosecute at their discretion. As a matter of morals and general welfare, they argue, abortion is an issue that falls squarely in the jurisdiction of individual states to decide.
While this argument may initially seem quite convincing, it fundamentally misunderstands what abortion restrictions are. This argument treats abortion as something unique, a category of crime all its own that can be permitted or restricted.
However, if the pro-life position is true and the unborn are human persons like you and me, then it becomes clear that abortion is not a unique category of crime but simply the crime of murder committed against a specific group.
Understanding abortion this way helps to make it clear how abortion is actually an equal protection issue, not a states’ rights issue. For example, imagine a state decided that it wanted to pass a law making it legal to murder Asian people.
The state still bans murder against all other races and will prosecute murderers accordingly, but it simply chooses not to afford that legal protection to its Asian population. Or, again, imagine a state that decides to make the murder of those aged 12 to 18 legal. Only people ages 12 to 18 can be killed, but people of every other age maintain the same legal protections.
These laws would be obviously unconstitutional and, of course, deeply immoral. A state cannot provide legal protection to only certain groups of people while denying it to others. The 14th Amendment explicitly demands equal protection under the law.
Abortion is just like these examples. It is murder committed against a certain age group. Laws permitting abortion are laws that remove the equal protection of the law from certain groups of people, something explicitly forbidden by the Constitution.
Another similar argument focuses on the idea that it is not the job of the federal government to legislate morality. People with this view will often say something like, “I personally believe that abortion is wrong, but I can’t force my views on the whole nation.”
Even though these people agree that abortion is the killing of an innocent human person, they may not support any abortion laws whatsoever, and those that do will tend to support them only at the state or local level.
Once again, they invoke the principle of federalism to argue that sensitive issues like this are better left to states because they can more easily achieve consensus.
While federalism is absolutely an important part of the structure of our government and has its place in determining the best way to govern the country, federalism cannot be used to justify a state denying some of its citizens fundamental human rights.
The United States rightly decided through the Civil War that the fundamental moral question of whether certain human beings could be owned as property was not an issue that could simply be left to the states. It was not good enough to say that “I personally believe slavery is wrong” or that such a “sensitive issue” should be left to the states where they can more easily achieve consensus.
No, slavery was a grave violation of the rights of human beings, and it was absolutely necessary that the nation and the people eradicate it completely from all of society. Abortion, the deliberate killing of the innocent and defenseless unborn, is just as grave a violation of the rights of human beings.
It is, therefore, just as incumbent on us as it was on our ancestors to extirpate this evil from our nation and protect those that have no ability to protect themselves. Both the Constitution’s demand for equal protection and the demands of moral duty impel us to enact a federal ban on abortion.
With all that being said, it is also important to recognize that state bans and any legislation, whether at the local, state, or federal level, that moves our country in the right direction toward reducing and eventually eliminating abortion should always be encouraged.
Idealism should not get in the way of progress. We ought to embrace any act or measure that reduces abortions while never losing sight of the fact that our end goal must always be a complete federal ban on the gravely evil practice.