On States' Rights To Protect Life and Health From the Federal Government

Louisiana has now joined South Dakota in moving to outlaw nearly all abortions after Gov. Kathleen Blanco signed Saturday a measure that would only allow the procedure when the life of the mother is in danger or severely threatened. The law would let Dakotans do the heavy legal lifting by not going into effect until and if Roe v. Wade is overturned by the U.S. Supreme Court.

Conservatives have long asserted that Roe improperly seized power from the states to regulate abortion. Pro-choice cynics have asserted that this federalist position is one of convenience and not of principle. But those Congressional states-rights champions will have a chance this month to prove their commitment to both states’ rights and pro-life issues. But will they rise to the challenge?

The challenge in question is the so-called Hinchey-Rohrabacher amendment to the State-Science-Justice-Commerce spending bill. This amendment would forbid federal funds to be used for Justice Department operations which arrest doctors and patients who prescribe and ingest cannabis (marijuana) under the protection of state law. This measure embodies the core principle of American federalism as codified in the Tenth Amendment to the U.S. Constitution. The Tenth Amendment clarifies that any governmental powers not delegated to the federal government are reserved to the States.

Laws regarding the use of cannabis for medical purposes fall under those powers reserved to the States, particularly when the plant is grown and consumed within the same state. A plant with a wholly intrastate life cycle puts its regulation under the power of that individual State itself, not under the commerce clause in Article I of the U.S. Constitution.

The United States Supreme Court in 1995 upheld this Constitutional principle in United States v. Lopez, striking down a federal gun law barring anyone from carrying a firearm near a school. The Supreme Court found Congressional justification of the law to be a twisted interpretation of and broad overreach under Article I of the U.S. Constitution.

Justice Thomas wrote in his concurring ruling on Lopez:

"The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. … Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. … This test, if taken to its logical extreme, would give Congress a “police power” over all aspects of American life."

However, in 2005, when the question was weeds rather than guns, the Supreme Court changed course. In Raich v. Ashcroft, the Court said that federal regulations of cannabis pre-empted state laws protecting a patient's right to use cannabis. Justice O'Connor, joined by Justices Rehnquist and Thomas, wrote in dissent that the majority's ruling in Raich was "irreconcilable" with Lopez. This stunning reversal from Lopez to Raich seems prima facie to be political, rather than grounded in sound Constitutional reasoning.

Enthralled by political preference as the judiciary may be, the Legislative Branch is still the first branch of the federal government in the U. S. Constitution. A decision by the Congress to move toward a more Constitutional policy in this area cannot be overruled by the Judicial Branch. Congress has moved to reassert this primacy in the wake of last year's Kelo vs. New London ruling by the Supreme Court, which undermined the Fifth Amendment's guarantee to property rights. Just as Congress can reassert a Fifth Amendment right to property in the wake of a Supreme Court ruling, so can Congress reassert states' rights under the Tenth Amendment.

As noted in the Raich dissent, "The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens." The States can protect the health and life of their citizens by legislating positive protection for the rights of individuals (as acknowledged in the Ninth Amendment) to provide for their own life and health. Whether it is firearms or plants, or both, that an individual American uses to protect his life and health, the federal government has no legal or moral right to seize those tools.

The Hinchey-Rohrabacher amendment provides a chance for Congress, particularly conservatives, to reaffirm that principle. Politicians who support the right of South Dakota (and other states) to craft criminal law and protect an individual right to life from the vagaries of the federal judiciary can prove their concern is one of principle and not political expediency by supporting this amendment.