Getting beyond Roe: Why Returning Abortion to the States Is a Good Idea

By Balko, Radley | Reason, August-September 2007 | Go to article overview

Getting beyond Roe: Why Returning Abortion to the States Is a Good Idea


Balko, Radley, Reason


The Politics of Abortion, by Anne Hendershott, Encounter Books, 179 pages, $25.95

IN 1985 a prominent liberal legal figure argued that Roe v. Wade, the Supreme Court decision that established a constitutional right to an abortion, was a "heavy-handed judicial intervention" that "was difficult to justify and appears to have provoked, not resolved, conflict." The writer was Ruth Bader Ginsburg, now an associate justice on the U.S. Supreme Court--and also now a strong supporter of Roe.

Ginsburg isn't the only backer of abortion rights to have taken issue with the 1973 decision. In 1995, for example, the University of Chicago's Cass Sunstein, a superstar among liberal law professors, wrote in the Harvard Law Review that the high court "should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges." Roe, he argued, centralized an issue centered around privacy, reproduction, and medical ethics, all matters that traditionally have been the province of the states. Moving those moral debates to Washington forced a one-size-fits-all policy on the entire country, raising the stakes, and therefore the contentiousness, of an already divisive issue.

A new book by a staunch critic of abortion also suggests a decentralized approach. In The Politics of Abortion, the conservative sociologist Anne Hendershott offers a scathing, unabashedly polemical history of the pro-choice movement. While Hendershott leaves no ambiguity about her own position on the issue, she closes the book by calling not for more federal antiabortion laws but for returning the issue to the states. It is time to end the "superficial slogans that rally the troops but build impenetrable barriers," she writes. "Taking the discussions out of the courts and back to the realm of local policy, where we might once again debate the politics of abortion as neighbors and friends, would be a good start."

On that much, at least, she's correct. The "pro-choice"/"pro-life" split suggests that only two options are on the table, when in fact far more positions are possible. Just as pregnancy is a continuum, so too is the spectrum of opinion on abortion, from what might be called the Monty Python position--"Every Sperm Is Sacred"--to the philosopher Peter Singer's argument that even infants lack the self-actualization that would make it immoral to kill them, or at least no more immoral than killing an animal of similar mental capacity. Most views, of course, lie somewhere in between, offering different perspectives on everything from when human life begins to who, aside from the mother, might have a say in the decision to end a pregnancy.

Abortion policy, then, is about drawing lines and setting community standards. Such issues are best dealt with in those diverse laboratories of democracy, the states. A federalist approach would allow a wide array of abortion policies that better reflects the spectrum of public opinion on the issue. That isn't to say a federalist approach would leave everybody fully satisfied. There would still be people stuck in states whose laws don't reflect their personal values. But that much isn't very different from the way things stand today. Roe prevents any state from banning abortion outright, but in places like Utah and Mississippi abortion is extremely rare, due not just to legal restrictions--waiting periods, mandatory counseling, parental notification--but also to the fact that prevailing community values mean there isn't much of a market for the procedure. Mississippi has just one abortion clinic in the entire state.

The main difference between a purely federalist approach to abortion and what we have today is that in the former each side wouldn't be clamoring to control the federal government so it could impose its favored policies on the rest of the country. The battles would be fought in the state legislatures, and national politics would no longer be held hostage to the abortion issue. …

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