The Case Against Federalism

Some time in the next month, probably while I am out blissfully ignoring the news, the final and official version of the Dobbs ruling overturning Roe v. Wade will be released. It won’t make as big a splash as it might have, because we already know what’s in it.

What will have a bigger impact, over the long term, is that once the ruling becomes official—I am assuming that it really will have five votes on the court, and that the final version will not be substantially different from the leak—it will then be implemented in a flurry of state laws. That’s where things get interesting. It’s easy for politicians to grandstand and pass a law, but then they’re on the hook for the actual consequences of enforcing that law.

I just had an article published at Discourse projecting the conflicts that will arise from the supposed solution of “leaving abortion to the states.”

Here are some scenarios that could arise from such laws. Suppose a young woman from Colorado is roommates with another young woman at a college in Louisiana. The roommate is sexually assaulted on a date, so the girl from Colorado shares her emergency supply of the morning-after pill. She bought the pills legally in Colorado, which has some of the fewest restrictions in the nation. But if she is discovered—let us presume that Louisiana follows Texas and Oklahoma in providing an incentive for vigilante enforcement by busybodies—both she and her roommate could be charged with murder.

You can begin to see the problem. How can something be completely legal in one state and a capital offense in another—particularly in a country where people move so frequently and casually from one state to the next?

The problem of people moving back and forth adds to the dilemma. Already, Republicans in Missouri have proposed a law that would make it a crime to help someone cross state lines to seek an abortion—an attempt to keep young women from crossing over into Illinois to avoid Missouri’s restrictions. This raises the prospect of an underground railroad for abortion, illegal networks that help women travel from restrictive states to less restrictive states.

You can begin to see the limits of federalism and the problems that arise from taking a question of fundamental rights and deciding to give unlimited leeway to the states on whether or not they recognize it.

In the process of thinking out that issue of rights, I have found myself approaching the issue somewhat differently from the usual (should I say, traditional?) Objectivist position, which is to insist that prior to birth a fetus is merely a potential human. Well, that potential keeps developing for nine months and gets pretty darn actual toward the end, so I have been emphasizing how that continuum complicates the issue.

Most of us agree that a fetus at the end of its term is a fully formed human. Of course it is, because it needs to be ready to survive after birth. Few would agree that an embryo has full rights from the moment of fertilization, nor would we be willing to follow all the implications of enforcing such a rule.

The time between those two endpoints involves a spectrum of development, and there is room for debate about where on that spectrum it would still be moral to terminate a pregnancy and for what reasons—and what role the government should play in that decision.

Read the whole thing.

This ends up leading me to the unexpected conclusion that for all its faults, the system established by Roe v. Wade and Planned Parenthood v. Casey was actually pretty good—and we’re going to miss it when it’s gone.