Posted by: bridget | 22 January 2007

Blogging for Federalism

On the 34th anniversary of Roe v. Wade, Washington is covered in pro-choice and pro-life marchers, the New York Times runs cover stories about how there may or may not be post-abortion trauma, and, in general, chaos reigns as it has done for the past 34 years.

Very little attention has been paid to the last point, however, so the pachyderm is Blogging for Federalism. The aftermath of Roe has brought us 48 million abortions, despite radical improvements in and access to birth control. Pregnancy and delivery is safer; premies are more likely to survive; yet, the abortion rate has remain relatively unchanged in the past 100 years. (Citing Susan Faludi’s Backlash.) The regulation of medicine has long been a state function; yet, states are not allowed to regulate abortion before the first trimester. Parental consent and notification laws, which are mandatory for aspirin and x-rays of a sprained ankle, are considered to be too intrusive for teenagers. So, in the aftermath of Roe, a blog for federalism.

Roe and its progeny: Roe established the right of a woman to make a decision, with her doctor, as to the medical benefits of an abortion. States may not regulate abortion during the first trimester; they may regulate during the second trimester, but only if the health and life of the mother are protected, and full regulation after fetal viability. Planned Parenthood v. Casey introduced the “undue burden” standard for a woman’s right to seek an abortion, allowed for 24-hour waiting periods, parental consent, and informed consent. It did not, however, allow for spousal consent laws, so a woman may abort her husband’s baby against his wishes. This gives women more rights during pregnancy than men, as pointed out in a controversial Michigan case. Ohio v. Akron Center upheld the right of a state to require parental notification, so long as judicial bypass procedures are in place. Stenburg v. Carhart invalidated partial birth abortion bans that do not contain an explicit health exception.

The theme running through these cases is jurisprudential kama sutra, as the Supreme Court attempts to legislate abortion laws for the country. A court of nine is ill-suited to make the determination of ideal laws regarding abortion, consent, and fetal viability. It is well-suited to determine whether such laws are in accordance with the Constitution as written, i.e. if such legislation meets the floor of guaranteed rights. Nevertheless, the Court has created a patchwork of legislation to govern the contentious issue of abortion.

Legal inconsistency: In 1970, Keller v. Superiour Court was decided in California, in which a man could not be charged with manslaughter (or any form of homicide) for the deliberate killing of his ex-wife’s pre-viability fetus. Obviously, the law advanced – Scott Peterson having been convicted of murdering his unborn son. Yet, such laws are fundamentally inconsistent with abortion on demand. The value of a pre-viable fetus should not depend on the value placed upon it by its mother; such a theory would allow us to kill the homeless and would give new parents the right to infanticide. In our laws, a protected life is protected, regardless of the value placed upon it by society or any individual; it is the essence of civilisation to protect those who cannot gather the force and support to protect themselves. Roe and its progeny remove the right of each state to determine, as a legal matter, how to consistently deal with fetal life; such legislation could outlaw abortion beyond the point at which criminal law would charge someone who caused a miscarriage, or it could simply not have criminal, only tort, sanctions against a person who assaults a pregnant woman.

End-of-life decisions have traditionally been the province of the states. Most states consider a person to be “dead” when there are no brain waves; states also have a variety of techniques to determine who makes end-of-life decisions and how they may be carried out. Pregnancy, in some cases (i.e. severe fetal abnormality), involves such decisions. Roe prevents states from applying established and workable end-of-life jurisprudence and legislation to pregnancy, which would improve the consistency of our laws and, hopefully, reduce the controversy over abortion. If brain waves are a standard for life, a state could reasonably allow abortions until that point (roughly the 6th week of pregnancy), with severe fetal abnormality, or when the woman’s life is likewise in danger.

Pro-life and pink: “Feminists” have long painted the pro-choice movement as a victory for women and the pro-life movement as a chauvanistic idea designed to punish women for having sex. Nevertheless, young men between the ages of 18 and 35 are the largest supporters of abortion rights, mostly for selfish reasons: they have no desire to pay child support and recognize that abortion nicely takes care of the unfortunate result of sex. The gender split on the abortion issue is insignificant; if anything, women are more pro-life than men. A Princeton survey found that 51% of women think that abortion should be entirely illegal, or legal only in the case of rape, incest, or to save a woman’s life. Only 30% of women agree with abortion on demand – the “right” conferred by Roe and its progeny. Is it any wonder that most abortionists are male?

2007 is not 1972: Abortion advocates who advocate for upholding Roe and against any intrusion into abortion on demand cite back alleys, unsafe abortions, and girls who run away from home as reasons for allowing virtually unregulated abortion. While their arguments may have held water in the late 1960s, they are irrelevant today. The Pill was first introduced in 1960. Ten times as many women take the Pill today as they did when abortion was illegal. Over time, the hormone levels in the Pill have dropped, health-care parity laws require that health insurance covers it, and it is more socially acceptable. Other birth control methods (especially permanent methods, such as vascetomies and tubal ligations) are becoming more common and acceptable. The failure rate of the Pill and a condom is roughly one-tenth of one percent.

Moreover, single motherhood is socially acceptable in ways that it never was during the ’60s. A woman need not have an abortion out of fear of social stigma; the only reason that there is social stigma attached to pregnancy now is the availability of abortion. In the past thirty years, radical changes in the law have allowed women to protect themselves from abusive husbands and boyfriends, and engineer various forms of adoptions to give them the opportunity to see their children. While there is certainly room for improvement, such changes will not be forthcoming in light of the fact that women simply abort their babies instead of having them and fighting for necessary changes.That segues nicely into the next point: Roe creates its own exigency.

Roe creates its own exigency: Roughly 1.2 million American women seek abortions every year. Roughly 40% of American women will have abortions in their lifetime. Many women who abort (60%) already have kids. A large percentage of women who have abortions will have another. Laws are tailored with the idea that pregnancy is now a choice; any woman who chooses to give birth obviously made the choice to not abort. Despite enormous social changes in the past thirty years, adoption laws are not keeping pace, in large part because the ready availability of abortion ensures that few women give up their children for adoption and advocate for change. Furthermore, the availability and amorality of abortion increase the difficulty in obtaining permanent birth control: pregnancy is seen as reversable (via abortion), while tubal ligations are not. This is part of the reason why so many women who abort are already mothers.

The failure rate of birth control (condom + Pill) is one-tenth of one percent. There are roughly 50 million American women of childbearing age, five million pregnancies every year, of which roughly 2-3 million are unwanted and unplanned. Assuming that every American woman was having sex throughout the year (obviously, this number is too high, considering single women, teenagers, abstinent types, etc) and using contraception properly, there would be fifty thousand unplanned pregnancies. Assuming the current rate of one abortion for every two unplanned pregnancies, there should only be 25,000 abortions per year, or one-fiftieth of the current rate.

Any woman who is serious about not getting pregnant has options available to her. In a few years, a male Pill will be out, giving men similar options. Roe has done nothing but divorce sex from pregnancy, to the point where it has become unfashionable to point out that sex causes pregnancy and any couple who so engages should be prepared for pregnancy. If Roe is overturned, it will not create scores of women running into back alleys; it will create scores of women who run to the local CVS to get condoms and their doctor’s offices for Pill prescriptions – which is, really, what anyone mature enough for sex should be responsible enough to do.

State regulation of medicine: Before the Roe debacle, states regulated the practice of medicine within their borders. Physicians are licensed by the state (much as are lawyers), malpractice law is a state issue, and, in cases of controversial medicinal practices (ex. assisted suicide), the state makes the decision, not the federal government. The Supreme Court eviscerated this model with its Roe ruling. Abortion on demand has prohibited states from enacting comprehensive legislation to address the issue of unplanned pregnancies. For example, a state may not prohibit most abortions, but provide mandated access to birth control and Plan B, extensive maternity and pre-natal coverage, protection for women in abusive relationships, and other social programmes designed to reduce the need for abortion.

The foundation of a federalist republic is that states may be, in the words of Justice Brandeis, “laboratories of experimentation.” Since the Roe ruling, states have not been allowed to design legislation and programmes, specific to their needs, to deal with the social problem of unwanted pregnancy. We do not have fifty separate ways of governing abortion, sex ed, informed consent, birth control, and adoption, to which we can look for guidance and empirical results; we have fifty states that are handicapped by a nest of Supreme Court rulings.

1984 revisited: It has been suggested on this blog that abortions could be mandated. The current abortion jurisprudence and moral philosophy leaves little doubt that the state could, in fact, mandate abortions if in its best interest. Abortion is not seen as a moral evil so much as a medical decision. A woman incapable of making the decision for herself (i.e. mentally retarded) could be coerced into having an abortion. Should a draft be reinstated and females enlisted, there is little to stop the government from punishing pregnant women for not aborting, or forcing them (a la China) to abort. Likewise, among modern “feminists,” legislation to prevent coerced abortions is seen as patronising, implying that women cannot make the decision themselves to abort. Essentially, abortion is seen as an equal or superiour choice to continuing a pregnancy, with little interest in fetal life; the logical conclusion of this is to allow forced abortions, either by state action or by lack of intervention in private action.



  1. What role in our life is played with medicine? Health of the nation is a priority problem of the government in the field of health protection. WBR LeoP

  2. Yes, public health is an issue, but that does not automatically translate into abortion, abortion on demand, gov’t funded contraception, or socialised medicine.

  3. […] Rerun Due to time constraints, today’s post will be a rerun of last year’s post.   […]

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