Don't Re-Nationalize Abortion Law

Absent consensus, the abortion issue is best left to be wrestled with by voters at the state level.

Free use image uploaded from FreePix.uk

There’s little doubt in the minds of honest observers that the central issue of the current election cycle is the economy. However, the Dobbs v. Jackson decision has still had a tremendous influence on the political conversation as voters wrestle personally with abortion as a consequential political issue for the first time in nearly fifty years.

Moving beyond the specific debate over the pro-life vs. pro-abortion dilemma, the immediate question for all sides is whether to maintain the new status quo of state-by-state laws or force the question at the federal level. While the pro-abortion side is far more likely to support a national abortion law, as evidenced by Rep. Pelosi’s attempts to codify abortion rights in Congress and President Biden’s pledge to try again next year if Democrats maintain their majority, there are still plenty on the pro-life side (such as Sen. Lindsey Graham) clamoring for a national law protecting unborn life. For my part, I disagree with all such attempts to nationalize the issue yet again.

It’s been my observation that abortion is uniquely divisive because there really is no meaningful middle ground on the issue, and, at the end of the day, one side wins and the other loses. That’s not to say we can’t draw reasonable concessions from one side or the other. But even with such concessions, any proposed law will predominantly reflect one side’s view or the other.

This is because the pro-abortion side views abortion as akin to a natural right and considers restrictions on abortion as unjust and oppressive. Meanwhile, the pro-life side believes society should protect all human life and that failing to do so is a barbaric and moral failure. If there’s a way for such convictions to coexist, I’ve yet to see it. Either a woman has the choice to terminate a pregnancy, or an unborn child has the right to live. Any compromise between those positions (beyond small concessions) is a betrayal of the principles of both.

This is why the best solution American society currently can have is where we’ve arrived: allowing each state to deal with the issue as we debate towards building a consensus one way or the other.

As a proponent of the worth and value of unborn life, I never viewed the overturning of Roe v. Wade as any kind of end, but as a means to an end. For me, the goal was always to place the issue closer to the people who must ultimately decide how the laws should look and to allow each state to experiment with how best to address the issue.

Of course, like any issue, there are outliers both to the Right and to the Left. But with the voters who now have to wrestle directly with the question, the conversation has become far more fluid and the debate is already becoming more substantive. With the issue front and center in local and state races, voters are engaging more in these lower levels of government. And as state laws begin to reflect the will of state voters, the national temperature on the issue will get dialed down considerably.

Localism, as a principle, suggests the government that’s closest to the people best reflects them. One of the significant problems of our time is that so many issues have become unhealthily nationalized, and everyone is afraid of having their way of life attacked because some other interest or faction has control of the federal government. Any move away from nationalization on any issue is a tremendous victory and a healthy step in a better direction. No, issues and problems don’t go away, but the goal is functional society and politics, not utopia.

Of course, general government is necessary for general matters. The question is, are profoundly moral and contentious issues what the general government is for, or are such divisive matters best worked out with fear and trembling by the people themselves in local and state government?

I’m a natural law theorist (and a natural law originalist jurisprudentially), and yes, I believe that the right to live is an essential natural right. I hold the view that protection against assaults on life and limb is one of the most fundamental duties of government. I would very much support a constitutional amendment banning all abortions after fifteen weeks. And I have even argued that there is an originalist jurisprudential argument for a Supreme Court ruling that bans abortions after fifteen weeks.

However, I’m also a proceduralist, an institutionalist, and a realist. I recognize prudentially that a) no consensus currently exists to ratify a constitutional amendment addressing abortion, b) Roe v. Wade was seriously detrimental toward quality discourse on the matter, and c) the Supreme Court as an institution has been greatly politicized and delegitimized in the eyes of the people due to this issue. Therefore, I believe that the best path forward on the issue is to allow it to remain in the purview of the states so that the people can, at this lower and less consequential level of government, more healthily explore and debate the question of abortion.

I will not shy away from admitting that my hope, in the long run, is that the pro-life movement can build towards a life-affirming consensus, and that the right to life for all humankind will eventually be affirmed either by the courts or, ideally, through a constitutional amendment. But such a consensus is a difficult task, and until we can find a way to build it, the general government should stay out of the issue. Seeking to force the question without consensus is unhealthy for cohesive society, and many of the current attempts to do so are fraying the bonds of the union.

My offer to both sides is to embrace this path as well, and let the issue play out in the public square. Those of us who are pro-life will argue on behalf of a consensus for our view, and the pro-abortion side will argue for a consensus for their view. If one of us gains the requisite support to pass a constitutional amendment, so be it. Until then, let each state determine its own laws on the issue. Absent any consensus, let some states embrace the pro-life view, let others embrace the pro-abortion view, and let others experiment with variations of, or compromises between, either view. Currently, this is the closest thing to a happy medium possible between the competing perspectives.