Roe, Abortion, and the Abandoning of the Federal System

by William L. Anderson

In previous columns, I have made myself anathema to many Libertarians and supporters of abortion rights. My being pro-life is an unacceptable position, they believe, and they buttress their arguments with quotes from Murray Rothbard (whom I admire) and from others whose beliefs I find to be less supportive of liberty.

However, it is now time for me to become anathema in the eyes of many pro-life people. I will accomplish this feat by examining the infamous Roe v. Wade decision by the U.S. Supreme Court and explain the real violence done to us by the court. I will give a hint: the problem was not with abortion. The problem is that the decision, like so many others by the High Court, further destroyed our freedom-protecting federal system.

One of the mistaken beliefs about Roe is that "it legalized abortion" in the United States. That is simply not true. A number of states already allowed abortion, including New York and California, while other states, including Texas (from which Roe originated), prohibited the practice. (The law permitting abortion in California was signed by then Gov. Ronald Reagan.) What the court did was to rule (1) states could not prohibit abortion during the first 24 weeks of pregnancy, and (2) could regulate abortions in the last 12 weeks. Subsequent decisions by the court have said that states basically could not prohibit abortion at any time for any reason.

The majority of justices said that their 7-2 decision was based upon their belief that the Constitution guaranteed "a woman’s right to abortion." With that in mind, they reasoned, if the Constitution protected such a "right," then no state could deny such a right to a woman. That the justices were able to find this "right to abortion" in the language of the Bill of Rights is a sick joke at best.

According to court insiders, the justices believed that their decision would end the abortion debate once and for all. Instead, by nationalizing the issue, they guaranteed that it would play a part in the political landscape for decades to come. In the process of passing and later affirming Roe, the court also promoted the further destruction of the federal system that the founders of this nation so painstakingly put together. The result has not been the expansion of freedom, but rather its erosion.

I think that the Roe decision was a tragedy not only because it forced states and their citizens to accept an abominable practice that many of them clearly did not want, but also because it changed the nature of how pro-life groups have operated. Before Roe, such groups operated outside the political system. After Roe, they became a fixture in the political landscape and, to make matters worse, they began to adopt the legislative tactics of those who have sought to promote abortion rights by destroying the Constitution.

Let me first state that I believe the court should overturn Roe immediately. It usurps legitimate powers of the states and turns the Supreme Court into a protector of an evil social philosophy instead of being a defender of our God-given rights. This question is one that should be decided by the states, not the Congress, the President of the United States, or the U.S. Supreme Court.

This means that I oppose two cherished platforms of the present right-to-life movement. The first is the "partial-birth" abortion bill that is perpetually passed by Congress and vetoed by President Clinton. The second is the "Human Life Amendment" that is a regular fixture of the Republican Platform and is the right-to-life litmus test for all Republican presidential candidates. Both of these things destroy the character of the federal system and will make matters worse rather than better.

For example, while I believe that the "partial-birth" abortion practice is abominable and is something that should be rejected by a civilized society, it should be prohibited by the states, not the central government. In attempting to ban this practice nationally, Congress resorts to using the "Commerce Clause" of the Constitution, something that leftist groups have used to destroy individual freedoms that Americans once enjoyed. The purpose of this clause was to deal with real issues of interstate trade by preventing states from erecting tariff barriers against each other. Using it to prevent an abortion procedure, as horrible as it may be, is a misuse of that law and invites even more abuse of the Constitution.

The recent actions by the Supreme Court to overturn the Nebraska law on "partial-birth" abortion underscores just how the court despises the federal system. The original Roe decision said that states could regulate late term abortions, which is what the Nebraska legislature tried to do. However, like Lucy holding the football for Charlie Brown, the Supreme Court changed the rules in mid-stream. If the majority members of the court actually respected the Constitution, it would not have made such an awful decision.

Since the Human Life Amendment would make abortion a federal crime, it would place the FBI in charge of enforcing the law. As we have seen in this past decade, the FBI has become one of the worst abusers of American citizens. We can hardly expect it to protect life, especially now since the Clinton Administration has pressed the agency into the service of protecting abortion providers from violent opponents.

To further complicate matters, future Democratic (and, face it, Republican) pro-abortion administrations would openly fail to enforce the amendment, thus turning it into a sick joke. Furthermore, future presidential candidates would openly campaign on overturning the amendment, thus guaranteeing future political turmoil on a national scale.

Even though I would like to see abortion banned in all states, I realize this is not politically possible, given the current moral and social climate in the United States. The best solution, then, is to allow states to decide this question. If the legislature of New York, for example, decides to permit abortion, then that is an issue for the citizens of that state to decide. I may not like the decision but I have to live with it, knowing that there are other state legislatures that actually respect human life in all forms.

When it issued Roe, the Supreme Court seemed to take the tone that it had once and for all "solved" the abortion question using the Great Wisdom of a Solomon. We now know that the court actually unleashed nearly three decades of violence and acrimony and, in the process, made all of us less free by further trashing the U.S. Constitution. To use the same tactics in order to prohibit abortion nationwide would no more "solve" this issue than Roe has done. It is time for those who wish to protect life to respect the Constitution.

October 14, 2000

William L. Anderson, Ph.D., is assistant professor of economics at North Greenville College in Tigerville, South Carolina. He is an adjunct scholar of the Ludwig von Mises Institute.