Abortion and the Constitution--or, my support of States Rights

Great Debates
1

Here in the U.S. we have what I understand is a unique system of government (compared to other nations), whereas the individual states are confederated under a central government, which helps unify particular rights for all citizens nationwide yet leaves the states’ right to decide their own particular issues. The former I deliver evidence of suffrage, uniform freedom of press (to include radio and Internet), peaceful gatherings, and individual worship. The latter I deliver gun rights and carry privileges (I personally maintain a distinction), property taxation, vehicle rights, and land ownership things–since I just bought a house. Bottom line, I think a lot of issues are best decided on the States’ level, and not on a national one.

Thus being, I just read this article, where Chief Justice Scalia indicates his opinion on some issues such as abortion are not adressed in the Constitution–presumably because the technology wasn’t present at the time, and the Framers could not have possibly imagined such things.

I heard a spot on NPR today about Dubya’s intended support for a Constitutional amendment to spell out a “marriage” as between a man and a woman. Now, I am not opposed to same-sex marriage. What I am opposed to is a carte blanche, carpet-blanket bombing of notions nationwide. I believe that when Massachusetts decides it ain’t good for Bostonians to open-carry a sidearm in downtown Cambride, it ought not carry over to the plains of Montana. Conversely, if the conservatives in North Dakota decide it’s not in their best intrerest to allow same-sex marriages to be “married”, that neighboring Minnesota has to carry suit.

So yeah, I’ve rambled enough. Bottom line, I personally believe that certain issues such as abortion, and same-sex marriage (civil unions or whatever you’d like to call them) are best left to the individual states themselves. For personal example, I agree with New Jersey’s rather strict gun control laws: I don’t need 800,000 in my home county packing heat all the time. But I understand my former state of North Dakota being pretty lax about the issues–with it’s population of 600k statewide or so.

But, I focus on the article. Argue-me-this: should there be a Constitutional amendment on abortions (in any form) and same-sex marriage/unions?

Hell, throw a few more issues in there. I’m curious on what could be or could not be of Congressional merit.

Tripler
Man, one hell of a post was brewing in my head on my drive home tonight.

2

It makes sense that some things are handled differently between the states. There’s no reason why rural Montana has to hem to gun laws that make perfect sense in Manhattan. But that’s because one is rural and the other is a major city.

What’s the rational argument for outlawing abortion or gay marriage in some places? Are there no homosexuals on the plains? Do farmers’ daughters never have unintended pregnancies? I’d need to see a reason why there shouldn’t be a blanket nation-wide gurnatee for these rights.

3

The Constitution explicitly states that every state must honor the legal proceedings of other states. (Article IV, Section I: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”) This the reason why a man can’t marry one woman in California and then marry another woman in Florida - once you’re legally recognized as married in one state, you’re automatically recognized as married in every state.

4

It’s hardly unique: Australia and Canada have a very similar balance between the federal gornment and the states/provinces, and there are many other federations around the world.

5

Not quite.

In Pacific Employers Ins. Co. v. Industrial Accident Commission, 306 U.S. 493, 502 (1939), the Supreme Court explained their long-standing limitations on the Full Faith and Credit Clause when it impacts the public policy of a state:

6

As to the OP’s question:

I think the federal constitution should be silent on the issue of abortion. There is (or should be) no support for the idea that the federal constitution either “protects the rights of the unborn” by prohibiting abortion or that it “protects a woman’s right to choose” and forbids states from criminalizing abortion. It is simply silent on the matter.

Likewise marriage - another area correctly left to the states. The “Federal Marriage Amendment” is extremely unwise; it seeks to federalize an area that has never been and should never be a federal issue. By the same token, a court ruling that the federal Constitution somehow requires states to acknowledge same-sex marriage would likewise be wrong, and unwise to boot.

I am thus in general agreement with the OP.

7

I believe there should be a constitutional amendment banning abortion, though I know this doesn’t have a snowball’s chance in hell. By and large, I think most issues should be left up to the states, except in instances where an egregious abuse of a basic human right is permitted. I also don’t believe there was any constitutional basis for the Roe v. Wade decision, a position that even some pro-choice scholars hold. It is that illogical decision that creates the need for a constitutional amendment. Prior to that decision, it was up to the states.

BTW, I’m not trying to turn this into a pro-life versus pro-choice thread, but it’s tough to answer your question without providing some background. I’m quite certain that there are many on this thread who have a different perspective about what egregious abuse of a human right occurs in an abortion ban.

Amendments are really hard to pass. My gut always tell me that if one has sufficient support to get installed as the “law of the land,” then it is as close an approximation of the will of the people as we can get. Which is not the same as saying I agree with it.

8

Morally speaking, I think abortion should be legal, and that a woman’s right to obtain one should be enshrined in law.

There is, as you well know, a tendency for arguments about the larger context (“Should this be the kind of question decided at the federal level, or is it best left to be handled on a state-by-state basis?”) to be shillelaghed and tossed on-board the passing bandwagon of sentiment to issues to which that larger-context issue might be appled. In other words, when a strong pro-choice sentiment is holding sway across the nation, you tend to see a lot of people arguing that such issues should be decided at a national / federal level, and their reason for so arguing is that thereby abortion rights can be ensconced across-the-board rather than having to be won state by state. Then when a pro-life sentiment is sweeping the land and a reversal or severe curtailment of protections offered by Roe v Wade seems likely, you see a lot of the same people suddenly arguing in favor of letting such issues be decided at the state level, and again the argument is being made with all the attention on the strategic advantages to the issue of abortion and how it would be affected.
I hate that kind of “thinking”.

It would probably be useful to hash out what kinds of issues really ought to be decided federally and which ones by the states, and the limits of the federal government to intrude/intervene when the fed gov doesn’t like the direction some state has gone, and the limits of the state gove to thumb its nose at the feds when they don’t like the direction that the federal gov has taken, etc.

It’s not easy to separate the larger-context question from all the issue-laden ramifications. Most people just won’t argue it as an abstraction without consideration for the effects it would have on their issues.

People who’d like to see a federal law affecting abortions need also think about possible federal laws affecting gun ownership & carrying, marijuana for medical purposes, sexual age of consent laws, same-sex marriage laws, polygamy laws, and a host of other things that might conceivably be decided at either the federal level or at the state level. And in all matters, they need to understand the extremely high likelihood of the political party opposite of the one they most favor holding the balance of federal power at some juncture.

Me, I’m an anarchist; I favor concentrating decision-making power at the lowest possible levels (where it can’t be the individual person, the neighborhood; if not that, the village; in lieu of that, the county; where not the county, the state).

There are things I favor being done at the federal level, but they are structural-procedural — most importantly, the imposition (where necessary) of sufficiently democratic and participatory forms of government at lower levels, that the people subject to state and local and community and family governments never be in the grips of some autocratic fiefdom where they have no rights but are simply bossed around & controlled.

As long as the federal government protects us from that, count me in for states’ rights.

(And county rights. And town rights. And village rights. And…)

9

I agree with you, AHunter3. It is easy to believe that the Feds should control these kinds of things when the decisions seem to be going your way. But it has to be remembered that giving the Feds the ultimate control means that it is very, very difficult to change things with things aren’t going your way…this is why it is important to keep laws at the most local level possible. Just using the Roe v. Wade decision as an example (which I hate to do because it makes everyone so impassioned, but is a really good example, anyway), pro-choicers have to worry with each judicial appointment that it will be overturned, and taken to an extreme, a completely opposite decision will be made giving the fetus rights. If the rights of the mother can be reasoned out in the courts, then I’m sure it wouldn’t be that difficult to reason out the rights of the fetus as well. It is such a hazy issue that it is really more appropriately decided by the people than by the courts, because either way, it takes the power away from the people to change these decisions that are rather extreme, and do not actually seem to represent the true will of (most of) the people, anyway.

Additionally, I think it’s a little unreasonable to expect people who live, say, in New England, to live by the exact same laws and with the same cultural values as people in, say, the Rocky Mountain states. Yes, we are all Americans, but the cultures are very, very different, the attitudes are different, and the values are different. Trying to shoehorn everyone into one box causes resentment more than unity, in my opinion.

10

I agree with the OP. I’ll go further to say that I don’t think we should have laws that guarantee or allow things, actions or behaviors. I think if its not specifically denied, we should assume that it is legal. Legislating permission cedes more power government than it was given in the constitution. If a point needs clarification, legislate a clarification (example: at what point in a pregnancy or birth is the embryo/fetus/child a citizen and given the rights and protections of a citizen). And there’s no reason that these clarifications can’t be different from state to state.

11

I generally agree with the OP. As I’ve said before, if people would just READ the constitution and FOLLOW it, instead of trying to “interpret” (read: bend according to popular opinion or personal belief), they would find that it’s all taken care of already.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people

Is it in the Constitution? If yes, then federal powers apply. If no, state powers apply. See, it’s like one of those Choose-Your-Own-Adventure books. Simple.

As **Stratocaster **points out, it’s pretty hard to get an Amendment passed. Each state has to ratify it, based on a vote of their people, etc. If there really is such a swelling of support for an issue, then I’ll play by the rules of the game and acknowledge the law of the land (or choose to pay the penalty for not following the law). If there isn’t support for an Amendment, than it should stay a state matter.

The only thing I don’t agree with in the OP is this:

Abortion *was *performed in those days. It was performed in Ancient Egypt and Dark Ages Europe and Feudal China and the Frontier West. It wasn’t as safe or effective as today, but women have been using herbs and scrapey things (seashells, turtle shells, sticks) for millenia to try and rid themselves of unwanted fetuses. I find it unimaginable that the educated men who wrote the Constitution didn’t know abortion existed. Therefore, they either weren’t thinking about it when writing the paperwork, or they specifically intended it to be a state issue (or, more likely, didn’t fathom that government would get involved with it at all).

But they took care of that, too, as well as any other thing that really didn’t exist then, like internet taxation, digitial copywrites or computerized medical records. Anything not included in the Constitution can be put there by an Amendment. If it can’t be voted in as an Amendment, then, once again, it stays a state issue. It’s only logical - not enough NATIONAL support? Then it’s a local issue.

12

Much as I like the thought, I feel obliged to point out that Justice Scalia is not the Chief Justice.

13

A question; if Roe v. Wade is at some point thrown out, and the decision on the legality of abortion is given to the states, what exactly would happen should a person who gets an abortion in a state in which it’s allowed then moves to a state where it isn’t? Under the second state’s laws, they’ve committed a crime.

As an analogy, say murder isn’t a crime in one state; if I kill someone there, and then move to a state where it is a crime, should I expect to be arrested?

14

Except that murder IS a crime in all states. I believe an act is only a crime if it is against the law in the place it occurs (of course, I am not a lawyer, so someone correct me if I’m wrong). If shooting an intruder is legal in, say, Montana, and I have an intruder and I shoot him dead, I have done nothing illegal…even if I later move to Nebraska, where the exact same action IS illegal…Nebraska can’t prosecute me for it.

15

Depends on how the states handle it. There was a guy recently successfully charged with statutory rape after moving with his young wife to another state. In the first state, she was old enough to marry, but in the second state, she was too young to consent to sex.

The shooting example **Sarahfeena **gave is interesting because the shooting is done and over with in Montana. Same thing with an abortion. The sex with an underaged wife, of course, is an ongoing thing that was happing within the state that charged him. My uneducated WAG is that to press charges for a legal act in another state wouldn’t work simply because it’s done with. They’d have to specifically make it a crime to cross the state line - the crossing the line would be the crime, not the abortion.

In the real world, I think prosecutors would have a hard time getting public support for arresting and charging young women for “crossing state lines for the purposes of obtaining an abortion” or something like it. But it’s possible, of course Then again, the nice thing about state laws is that you can indeed move to another state with laws more to your liking, or you can use the legislative process to try and change the laws in your state - and it’s a helluva lot easier to get a state law changed than a federal law.

16

This sort of brings up a larger point on this issue, actually. If these things are civil or human rights (and, not to derail the thread, I think they are), then no government has the right to restrict them, even in the name of “States Rights.”

That’s the nature of a “right,” it’s inalienable, or universal, or whatever synonym we wish to apply. If a woman has the right to control her reproductive options, she has that right everywhere and always, otherwise, it’s just a privilage. And, if it is a right, then no single state government can curtail that right, ever. It’s not really a matter of federalization, but about our countries duty to protect the rights of its citizens at every level.

I fully support a heirarchial confederated structure in which matters of law are decided at state level—the smaller the federal government, the better. But matters of law and matters of rights are two seperate issues.

17

If you kill someone in Texas and move to Florida, should you expect to be arrested?

Well, yes - but only as a fugitive, not for the actual crime. Let’s put it another way - if you kill someone in Texas but Texas decides, for whatever reason, not to prosecute you, and you then move to Florida… you don’t imagine Florida will arrest you, do you?

18

Actually, your example is more interesting from a legal standpoint…I used my example because I thought it was more analagous to abortion, because, as you say, it is not an ongoing crime. It seems odd to me that someone could be prosecuted in the example you gave, because as pointed out earlier, valid marriages in one state generally are recognized in all of them.

This is the main reason that I am in favor of laws being made at the state & local levels…it is what I was trying to say about cultures. The best thing about 50 states, 50 state constitutions, and 50 state legal codes is that there are plenty of choices so that everyone can find a state whose culture & laws are the most to their liking & comfort. And, as you say, it is much easier to be involved & effect change at the local & state levels.

19

Right…they will extradite you to Texas if Texas requests it…if they don’t, Florida will not step in and arrest you on their behalf, or on their own behalf.

20

Aye, there’s the rub.

You would contend that “control her reproductive options” is a right that women have, a natural right.

I would, of course, vigorously disagree. And I might even contend that every human being has a “right to life” and it applies to tiny little unborn human beings.

So which of us is correct? And how do we go about making that determination? If there were a Bog Book o’ Human Rights which we both agreed was definitive and unambiguous, there would be no problem. But there isn’t.