I can understand people not considering it murder and wanting the woman to have the choice herself, that’s the position I happen to hold. I can also understand folks considering abortion murder, and wanting it outlawed federally, so that states cannot allow it if they wanted to; although I disagree, I think it’s a pretty reasonable position to hold.
What I don’t understand is wanting Roe v Wade overturned so that the decision can be made at the state level. If one thinks it’s murder, shouldn’t it be banned at a federal level? Do these same people want individual states to have the option to make the killing of adults legal as well? Can they perhaps already do this, if they so desired?
Or is it a position held purely as a compromise, because outlawing it federally seems out of reach?
I cannot see any reasonable moral argument that the decision shouldn’t be made at a federal level, shouldn’t be made at a personal level, but should be made in-between at the state level. It’s purely a position based on law somehow, right?
The political Right prefers state’s rights in large part because they are more organized and monolithic, and doing things state by state lets them concentrate and overwhelm the Left piecemeal *. It’s also less likely to rise to the level of the national consciousness. They are more likely to successfully ban or restrict abortion state by state than all at once at the Federal level. They are also much more like to achieve the partial success of banning abortion in some states.
And as far as non-abortion right wing issues go, for the robber baron segment of the Republicans, it’s a lot easier for a corporation to dominate a state government than the federal.
For as long as I can remember, states’ rights has been a conservative cause – at least in the South. No one has wanted to believe that it was one of the causes of the Civil War and I can understand that since slavery was an overwhelmingly repugnant cause. But states’ rights was still crammed down my throat as the desireable political point of view when I was in elementary school in the early 1950s.
Even as a child I thought it went against the “one nation, indivisible” notion.
Sometimes it can work for liberal issues too such as SSM.
Without getting into an argument over abortion itself, the reason some of us want it to be the states that decide, is that we don’t believe that there is a federal constitutional right to abortion. Yeah, the Supreme Court said there is, but we think that they’re wrong.
Because it has the possibility of working, at least to some degree. If there were mass protests and marches on Washington calling for fetal rights (basically something akin to the Suffragettes and Civil Rights movements), then pro-lifers would pursue a Federal strategy because that had the better chances.
I would welcome a constitutional amendment to ban abortion, which requires a level of broad support that I don’t envision. But the abortion issue aside, I believe the tenth amendment limits (properly) the powers of the Feds. Roe v. Wade was a decision that tortuously abused the Constitution to find a right that was not obvious in, you know, an actual reading of the text. That’s the state’s rights problem. I believe “rights” are whatever the states decide they are, to the extent the US Constitution doesn’t prohibit it. The voice of the people resides in the legislature, and if Utah wants abortions prohibited, or any other act, that’s none of the Feds’ damn business.
An abortion permitted by state law is not somehow more palatable to this pro-lifer. But this issue–as with all issues–is more rightly decided by the state to the extent that the Constitution is silent on it. And to be frank, I allow that rightly permitting the states to decide will limit abortions, and that’s welcome as well. But that’s not the reason why it’s constitutionally sound. I also agree with Clarence Thomas that the states had the right to prohibit sodomy, though I find such laws overbearing and would prefer that such matters were left up to consenting adults.
BTW, I’m not trying to convince anyone here, just explaining my position, since you asked.
ETA: The ninth amendment is obviously operative here as well.
I hope someone will correct me if I’m wrong here, but I don’t believe abortion ever was banned at the federal level. In the decade or so before Roe v. Wade several states did legalize abortion at least under some circumstances, so it was considered a state matter by the mid 20th century if not before.
Someone who didn’t really care about abortion per se might feel that it should be a state matter for historic reasons (“We did it that way for years!”), or more likely because they believe that it’s best for most legal matters to be decided at the state level. If other laws relating to sex and marriage can be decided at the state level, why not abortion?
I know this wasn’t exactly what you were getting at, but states already do have the option to make the killing of adults legal provided that the adult is a convicted murderer. The death penalty is permitted in many states but banned in others.
Even the Interstate Commerce Clause would be hard pressed to provide justification for a federal ban on abortion; AFAIK, laws against murder are left up to the states unless the federal government has some reasonable interest in the matter.
Laws against general murders are left at the state level still today. I would also support a constitutional amendment to outlaw abortion, but I realize that it is terribly unlikely to ever pass.
Absent that, the federal government should still be one of limited powers and the right to police internal matters, such as murder, should be left to the states.
Because the legal thinking about Row vs Wade is problematic. You might find this site interesting. It catalogs the arguments against Roe vs Wade be pro-choice legal thinkers. For instance:
With all due respect, I don’t understand what’s so hard for you to understand.
States have plenary power, meaning they can essentially do whatever they want to within the bounds of the U.S. Constitution and each particular state’s constitution. By contrast, the federal government is limited to doing those things specified in the U.S. Constitution.
Roe v. Wade and its progeny (funny term in this context, but hey) held that the U.S. Constitution protects the right of a woman to choose abortion in certain circumstances, meaning (at the very least) that a state cannot criminalize abortion in all circumstances. Some people think that the U.S. Constitution does no such thing.
Therefore, if Roe v. Wade did not exist, the natural result by default would be that each state could choose whether to criminalize abortions that take place in that state. A state could also explicitly create a right to privacy of varying sizes in its own constitution.
But if it went to the states, wouldn’t that decision be irrelevant? If it went along say red/blue states, unless you were in the central of the US you could just go to a state that has it legalized. Maybe they think they can chip away at states over time? I haven’t heard this argument until about a week ago, I find it interesting…
I oppose Roe v. Wade because it’s terrible legal reasoning.
You do understand that, as several other posters have hinted above, Right now, there is no general federal law against murder, right? The feds can get you if you kill a federal employee, or kill in a federal territory… etc, etc. But If you’re smack dab in the middle of, say, Delaware, a run-of-the-mill murder is a state issue, not a federal one.
That’s how it should be for abortion, beause it’s simple not a matter that should trigger federal interest. Reading a federal constitutional interest in abortion into the federal constitution was a tortured and twisted effort, as many committed pro-choice scholars acknowledge.
Now, if we get abortion at the state level, I’d argue to forbid abortion in my state. But that argument would be based on what I thought wise social policy is… and would be far weaker because a competing opinion is eminently reasonable.
Now, suppose President McCain gets to appoint replacements for Stevens and Ginsburg, and a new case makes its way to the Court, which finds a federal “right to life” in the Constitution for the unborn. That would create the result I desire - no abortion, anywhere. But I’d oppose such a decision for the same reason I now oppose Roe – it would be bad law, tortured reasoning to reach the desired conclusion.
Bricker, you know and I know that this is not the posture in which any challenge to Roe is likely to come up, but from the rhetoric I hear, I feel the need to make it clear: if a “conservative” (non-activist) Supreme Court overturns Roe, it will IRL be doing so not because it found a constitutional right to life, but because it did not find an enumerated constitutional right to abortion. I have to emphasize this because I hear so much talk about the Right “wanting the Supreme Court to make abortion illegal.” The only practical (and, it is not very practical at all) way that abortion becomes illegal as a federal matter is a Human Life Amendment to the Constitution (and, by pushing for this in the past, the right-to-lifers have explicitly acknowledged that whatever’s in the Constitution now, probably doesn’t prohibit abortion).
Civil rights have changed and expanded over the years. In an effort to ensure that all citizens enjoyed the same rights, the laws regarding them are enforced on a federal level rather than a state by state basis. Women couldn’t vote until 1920, and the original constitution said nothing about it; ought we rescind sufferage since it was not originally enumerated? We could rescind an amendment as easily as pass one. The reasoning for wanting abortion decided at the state level has been explained above. It is a tactic used by people who cannot make a compelling logical or ethical argument without resorting to religion, so they fall back into legal minutae.
Do you agree with the Supreme Court that home grown marijuana represents interstate commerce? I think it’s a bunch of BS myself. Drug laws should be decided at the state level too.
Just because the Supreme Court makes a ruling, doesn’t mean it’s correct. It’s the law of the land, and we have to live with it, but it’s not necessarily correct.
Frankly, I’m not certain what if any but the most mundane things ought to be decided at the state level. State’s rights were probably far more important years ago then they are now. We are so interconnected and dependant on federal funds, that I fail to see WHY we ought to legislate anything major on the state level other than a nod to antiquity. Really the items that people usually cry state’s rights on are ones that have some sort of ethical/religious background to the argument. The issue with that however, is that since we do not have mandatory elections, the only people who really come out to vote on the issue are the hardcore advocates on either side. I don’t feel that any states’ views are adequately represented enough to leave such an issue to the states.
The thing is, there are arguably good grounds for protecting the right to abortion on a federal level, but I don’t think Roe did a particularly good job of expressing them. I’d personally rather see abortion grounded in a federally recognized and protected right to self defense, for one.
And I wish people would stop talking about “States’ Rights.” States don’t have rights, individuals do. States have powers.