Abortion should be decided state-by-state because democracy is more important

Great Debates
1

Continuing the discussion from Re: Validity of positions in the topic: For those who are in favor of “abortion being left to the states” - why?:

I’m putting myself out there, but I think this is what it comes down to, for me personally. I consider myself neutral on abortion. I don’t believe abortion is (or should be) murder, but I also don’t believe the right to abortion is a natural or human right. I abstained from voting on the last abortion ballot measure. Also worth noting, I am not a woman.

That being said, I support the Supreme Court’s decision to return the abortion issue back to the states. I do not think having some states ban abortion and others allow it is a good result. It’s actually really unfair. But I think it would be worse if the federal government protected/banned abortion nationwide, because I don’t think the federal government has the legal power to do that. I would rather the federal government follow the law than break it in the name of protecting health and lives, because the only way we can fix our government is by acknowledging its flaws.

I agree with the Supreme Court that the Constitution does not insulate abortion from state regulation. This should not be surprising: in the 1860s, women were legally subordinate. The Constitution does not grant women property rights; that victory was won state by state, through a slow, democratic grind that eventually forced a national consensus. The suffrage movement worked state by state until it gained enough momentum for a Constitutional amendment. The path to progress in America has rarely been a sudden, top-down decree from a federal bench. By returning abortion to the states, the Supreme Court is forcing us to engage in that grind once again.

If we truly believe in democracy, we must accept that a community may set its own moral standards, however regressive they may seem, provided they do not infringe upon fundamental human rights. While I do not view abortion access itself as such a right (my argument would be very different if I did), the preservation of a mother’s life certainly is. States that provide no life-saving exceptions–or create enough legal ambiguity to ‘chill’ doctors from providing life-saving care–overstep their authority and violate that more basic right.

But what about the human cost? I do not deny that state abortion bans will cause thousands of women to suffer horribly and even lose their lives. And while I don’t personally believe a newly fertilized embryo is equivalent to a baby, I recognize that people with those beliefs view state abortion protections as sanctioning thousands of state killings. I lean towards the line between a morally acceptable abortion being somewhere between a heartbeat and natural viability. But when it came time to vote, I saw my choice as being all or nothing, keep the heartbeat law with limited exceptions, or enact what I saw as an overly broad protection. I talked to a lot of advocates. I helped convinced people to vote for and against the measure. But for me, it was a difficult decision. Neither side won my vote. I ultimately chose to abstain.

But when it comes to the Dobbs decision, or the question of a federal law protecting/banning abortion, the stakes are much higher. The alternative is no longer merely a state heartbeat law–the question is whether the federal policy is worth compromising the rule of law. When the federal government overreaches to “protect” a right that isn’t explicitly written in our founding documents, it weakens the rule of law. It creates a shortcut that bypasses the difficult work of convincing our neighbors. Sticking to the rules of the game is more important than any single individual right. If we allow the federal government to break its own boundaries to do “good,” we give it the power to break those same boundaries to do “evil” later. This is the inherent risk of a “living” Constitution that expands on the moral whims of the era rather than the literal text. The Constitution has hardly changed since the Supreme Court struck down state child labor protection laws, prohibited women from working as lawyers, and upheld forced sterilization of people deemed mentally unfit. We’ve made progress, but in many cases we haven’t locked it in. Yeah, Roe v. Wade protected women’s right to abortion, for a time. But how flimsy was that protection, and at what cost? Many individual civil liberties taken for granted in the last 50 years are now at risk of being pulled out from under us, because we cut corners on the democratic process last century.

Democracy is a process, not a specific set of outcomes. By returning this issue to the states, the Supreme Court has effectively told the American people that they must do the heavy lifting of persuasion themselves. The Supreme Court ripped off a bandaid and exposed a deeper wound. If we believe that a right to abortion is necessary for a modern society, we should not ask nine unelected judges to find it in a 230-year-old document; we should demand our neighbors vote for it. For the sake of the Union’s long-term stability, the constitutional process must come first, even when the human cost is tragically high. To do otherwise is to trade the bedrock of our Republic for a temporary policy victory, a trade that history suggests we will eventually regret when the pendulum of power inevitably swings back.

~Max

For those who are in favor of "abortion being left to the states" - why?
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Unfortunately, if it’s entirely left to the states, it’s going to, by definition, be really unfair, and really different state by state – and some will likely outlaw it entirely, even in cases of rape, incest, and a threat to the mother’s health, as well as try to punish residents of their states who seek out-of-state abortions.

This is exactly what you get.

3

Good luck convincing MAGA that they should do anything for Democrats.

4

What you’re arguing here is that “whims of the era” are just fine at the local level, not the federal level. This is the fundamental with prioritization of “states’ rights”, it allows for any number of tyrannical, whimsical abuses so long as they’re done at the state level. The original Constitution was so deficient in this regard that it permitted the literal enslavement of human beings, and those same slavers made the Constitution so hard to change that it made it all but impossible for slavery to be eliminated via legislative means without the precipitating event of the Civil War creating the political conditions for that to happen.

It’s profoundly bad faith to sit back and tut-tut about parliamentary due process and the literal words on the paper making it impossible to change, knowing that the Constitution was full-well drafted to make things like chattel slavery all but impossible to dislodge, and that it continues to be used that way to impose reproductive slavery.

The body of American law rests on all sorts of substantive due-process rights that weren’t written into the Constitution and aren’t broadly considered a usurpation of states’ rights. Most do not care or even know about these “constructed” rights because nobody’s making a national wedge of them, but I assure you, we have long ago accepted that human rights not enumerated in the Constitution can be constructed on Constitutional principles, that the Constitution isn’t a mere literal document like a homeowners association covenant that prescribes how long your lawn can grow before it’s in violation.

5

So, my right as a human being to govern my OWN PERSONAL body functions is not actually a right if some slope headed government of, say for example Florida, decides it isn’t? I’m supposed to be okay with that?

We actually tried that with slavery before the Civil War, but human decency and the precepts governing what this nation stands for prevailed.

I’m sorry, but I view your position as nothing more than a cop out. It’s a way for you not to take a definitive stand. If you say my rights as a woman aren’t really human rights, then you are saying that I am not human.

6

IMO he’s saying the Constitution doesn’t say you’re human enough to have those rights. And preserving the fiction of compliance with our 230 year old beta version democracy constitution is the highest most important goal.

Needless to say I do not hold by that idea.

7

The thing is, the particular flavor of democracy practiced in the United States kinda sucks. We’ve learned a lot in the past 250 years, lessons that have been adopted by other countries. Ours remains stuck with this awful two-party system and frequent minority rule.

It’s relevant that the thread this one was spun off from isn’t about whether abortion should be left up to the states, but rather is calling out anti-abortion activists for being hypocrites. “States rights” to commit murder is nonsensical, as murder is a federal crime, so if they genuinely think that abortion is murder then they already believe in a federal abortion ban. None of them care about states’ rights or even of having a philosophical argument about the nature of democracy; rather, they just know that there are stepping stones on the way to the total national abortion ban they so desperately want, and “leaving it up to the states” is one of them.

Max_S then comes along and makes the argument with legitimate conviction. Whenever he puts forth arguments like this, I’m brought back to this post by Ann_Hedonia about privilege.

Of course, Max is right – we should absolutely go through the effort of enshrining abortion as a constitutional right, via an amendment. It’s true that vast majority of Americans, after all, want abortion to be legal up to viability, and the only remaining debate is about what exceptions should be allowed after that. I think there’s enough popular sentiment there to get to the 3/4s of states required to ratify an amendment. I also think that our current democracy is so broken that it’s impossible to get Republican states to even go through the motions.

We’re left with a broken system and millions of women who are profoundly affected by it. Ignoring their reality in order to argue for the upholding of our particular flavor of democracy is a position of massive privilege.

8

So do you feel this way only about abortion or does it extend to the court decisions involving all “unenumerated rights” such as the right to use contraception, the right to travel within the US, the right to marry someone of a different race or the same gender, the right to make decisions regarding their childrens education ( states can’t mandate that children attend public school)? If I am accused of a crime, the constitution doesn’t explicitly say I’m entitled to a government paid lawyer if I can’t afford to pay one - should that be a state-by-state decision? And if you don’t believe there are any unenumerated rights, that what does the Ninth Amendment mean when it says

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

9

If you couch it as “right to abortion”, sure, that’s not specified in most human rights versions I know, but the right to bodily autonomy is absolutely enumerated as a human right:

Universal Declaration of Human Rights, Article 3
Everyone has the right to life, liberty and security of person.

Note that the same UDHR also specifies that it applies to born people in Article 1.

All human beings are born free and equal in dignity and rights

So Article 3’s right to life can not be said to apply to foetuses.

10

So on the matter of the fundamental human right to privacy, and whether the constitution protects you from the government regulating your most personal medical matters. You are saying “nope, the constitution doesn’t explicitly say you have that right so you don’t have it”.

Yet on the relatively trivial matter of which particular bit of the government has the power to infringe on that right. You are saying the constitution means only the state government has the power to regulate woman’s bodies not the federal government. Even though the constitution does not explicitly say that either!

That’s a crazy take on the constitution, that makes no sense at all except as fig leaf for SCOTUS justices and politicians who don’t want to be remembered for taking away Americans rights.

11

The right to control over one’s own body should not be subject to the whims and caprices of either state legislatures or the judicial system.

12

Not super relevant to the OP but if neither the legislative or judicial branch should be involved, how do you plan on protecting the right to control your body? Vibes? How the POTUS is feeling that morning?

13

Very good question. It should not be subject to voters or legislatures or judges. But unfortunately, the reality is that it is. Only true solution is a constitutional amendment, but we all know those are impossible.

14

So why define “community” as an entire state? Why not leave that question, or others, up to the individual town or county? At least at that level, it might make sense to speak of a community.

15

May a community set moral standards about everything? Grooming, language spoken, etc.? The word “moral” is very, very elastic and various groups in various eras have chosen to declare darn near every area of human behavior a matter of their “morality”. Famously Victorians thought it immoral to shelve books by male & female authors adjacent to one another.

If there are to be things that cannot become moralized, who decides what they are? And what are they? And how may they change over time? Are there any eternal guidelines that can define perhaps:

  • Definitely never a matter of morals for any group anywhere
  • Definitely always a matter of morals for every group everywhere
  • Fuzzy in the middle, may be a matter of morals or not depending on local whim and current fashion?
16

Just about everything you encounter in your daily life is governed by your state and local laws, e.g. your traffic laws, taxes, schools, easements, marriage/divorce laws, licensing, alcohol sales, at-will employment. The list is almost endless. Abortion is just another thing that should be handled at the state level. The counterargument, of course, is that abortion is a fundamental “right” that should be protected at the federal level, in the same way that the right to free speech is protected at the federal level. Or that it’s covered under a “right to privacy.” These are objectively faulty arguments, and the SCOTUS finally got it right the second time around.

When it comes down to it, though, your biggest hurdle is that millions and millions of people simply disagree with you; they believe abortion is not a fundamental right. And I don’t see these people coming around to your side anytime soon.

If the issue of abortion is super important to you, your only practical choice is to move to a state that has abortion laws that you agree with, and then get on with your life.

17

When you say “should” and “objective” in the same thought, you’re writing a contradiction. yo’re saying your opinion is objective and the folks holding the “should” opinion are not objective.

Whether or not your conclusion is correct, your argument is faulty.

18

I don’t think that IS the biggest hurdle, though. Survey after survey shows that about 2/3s of Americans would support a federal guarantee for abortion access. Meaning, if we had actual apportioned representation in both chambers of congress, we’d have the votes to pass it. I also think we’d have the votes in 75% of states to ratify an amendment.

The biggest hurdle is a combination of: 1) a minority of people (but a plurality of one party) disagree that abortion is a fundamental right, 2) those people have the support of one of our two major political parties, and 3) our two-party system combined with our lack of true proportional representation means that the minority wins.

Huzzah!

19

I would sure hope so, but I wouldn’t count on it. Part of the issue, I think, would be that, even if much more than half of Americans would support such a law, they are probably unevenly distributed, and I don’t think that you’d get a majority supporting it in the 3/4 of the states.

Plus, for reasons that are above my pay grade to understand, the Constitutional amendment process seems to be broken – or, at least, not really used any longer.

In the last 50 years, there has only been one Amendment instituted: the 27th. It’s a relatively minor amendment: it delays laws affecting Congressional pay from taking effect until after the next Congressional election (so a Congress cannot technically vote to give themselves a pay raise). And that one, which was implemented in 1992, was first proposed in 1789.

20

This is true for lots of issues that some people are very passionate about. Capital punishment, for example. If convicted of murder under state law, Colorado does not have the death penalty option. Its neighbor, Utah, does.

This is not a problem. It is operating in exactly the way our system was designed.

If, for example, you live in Utah but are against the death penalty, you have three options: 1) work to change state law and/or amend the state constitution, 2) move to a different state (that bans the death penality), or 3) live with it.