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Live by Wickard, Die by Wickard

April 19th, 2007 · 1 Comment

Scott Lemieux observes that (contra what many suggest) there’s no reason to expect Supreme Court decisions weakening Roe to simply “throw it back to the states”—as the very law at issue in the recent ruling demonstrates pretty clearly. Because, as we all know, terminating a pregnancy, like growing pot for personal use in your backyard, is “interstate commerce.” Right after the reelection of Bush, there was a brief flurry of talk on the left about how maybe “federalism” wasn’t just some hoary excuse for institutional racism… I’ll be interested to see whether any further moves in this direction revive that talk or simply up the stakes in the battle to control federal legislation. The anti-abortion folk, of course, need to have the fight at the federal level, because as long as the procedure is relatively available in at least a significant minority of states, they’re only going to be able to make a moderate dent in the total abortion rate, unless they’re prepared to build a border fence around Alabama. And I guess from the vulgar perspective of institutional fundraising and prestige, it’s in the interests of the advocacy groups on both sides to have it that way as well, since instead of a tense, pitched battle, you’d get a rapid move to relatively stable equilibrium policies in most states. But in terms of actually preserving access to reproductive choice, it seems like a federalist solution—almost certain to yield a world in which the status quo is preserved for most, abortion becomes somewhat more expensive and inconvenient for others, and is effectively put out of reach of a few—is both clearly suboptimal and a lot more attractive than anything close to an even lottery between the status quo nationwide or serious restrictions nationwide. Unfortunately, as Scott notes, the federalist solution doesn’t seem to be on the table

Tags: Law



1 response so far ↓

  • 1 b // Apr 21, 2007 at 11:09 am

    I’ve often thought about the idea of a post-Roe “underground railroad” that ferries women in trouble from anti-abortion states to free states (ones that recognize a woman’s right to control her own body).

    I want it to work because federalist decentralization is so elegant and pluralistic, almost Solomonic in its sensibility. But really, how would this work?

    You’re 15 and pregnant. You live in Mississippi. You’re from a family of modest means and you’re scared and not terribly bright (hey, you’re 15). Are you supposed to be able to have the wits, means, and presence of mind to get yourself to an abortion provider who may be hundreds of miles away, perhaps as far as Florida or Ohio?

    I think if we’re going to be honest about this, we must acknowledge that the federalist solution will mean that some women will lose access to abortion.