Abortion: A State Issue, a National Nightmare

News broke recently that Florida Senator Marco Rubio plans to sponsor a bill that would ban
abortions after 20 weeks. With Rubios reputation recently taking a hit in conservative circles, a
cynic might be excused for considering this a political move instead of a principled stand.
Principled or not, there are two questions that Rubio has apparently not considered: is it rational
to argue this issue at the national level and is such a bill constitutional.
To answer if it is rational, lets run through a quick hypothetical scenario. Lets say youre
walking down your street and come upon one of your neighbors lying dead in his driveway with
a knife sticking out of his back. As your neighbors crowd around the scene, you see someone
dialing their phone. Who do you think this person is calling?
Maybe theyre calling the President of the United States. After all, many murders happen across
the country every day, clearly making this a national issue that demands the presidents
attention. Or, if not the president, maybe theyve dialed the offices of federal senators and
representatives to let them know about the murder. When its time to prosecute the assailant,
where does the trial take place? Well, an issue as important and widespread as murder certainly
demands the attention of the Supreme Court.
Preposterous, right? Of course a local crime commands a local response. It would be irrational
to use national machinery to address a local or state issue like a violent crime of one individual
towards another.
This same logic applies to the issue of abortion. As the Pennsylvania Tenth Amendment
Centers Benjamin Gross points out, Murder, infanticide, abortion and rape all violate the nonaggression principle but the appropriate venue for legislation is the states. Any other viewpoint
is contrary to Jeffersons and Madisons.
Not to mention the Constitution. Not only is it irrational to decide this issue at the national level,
its unconstitutional to boot. To understand why, lets use the Tenth Amendment as our starting
point: The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.
So, in order for federal legislation on abortion to be constitutional, there would have to be some
specific grant of power in the Constitution itself that gives the authority of regulating abortion to
the federal government. The readily apparent fact of the matter is that such a delegation does not
exist. If it did, it would have fallen under the federal governments police powers which Thomas
Jefferson noted were limited to, a power to punish treason, counterfeiting the securities and
current coin of the United States, piracies, and felonies committed on the high seas, and offenses
against the law of nations, and no other crimes, whatsoever.

The inescapable reality is that the criminalization (or not) and regulation (or not) of abortion is
entirely a state issue. This will make most opponents of abortion uneasy, but it shouldnt. The
prevalence of abortion only exists to the extent it does today because the Supreme Court
unconstitutionally nationalized the issue in the 1973 Roe v. Wade decision. Before then, the
states were permitted to determine their own policy on abortion. Had Roe never come before the
Court, or if the states had decided that it was unconstitutional and they didnt have to abide by it,
the number of abortions would be far lower than it is today.
Even so, many abortion opponents will say that although abortion is a state issue, constitutionally
speaking, now that it has been nationalized there is no choice but to address it at that level. But,
to persist in this strategy ignores not only the Constitution, but the facts.
Francisco Rodriguez of the Florida Tenth Amendment Center recalls that In 2004, Missouri
Senator Jim Talent proposed a bill that would return abortion laws back to the states. In the
research for the bill they found that 36 states would get rid of abortion, or at least most levels of
abortion, with only 14 states continuing the federal mandate for abortion on demand.
Meanwhile, 40 years have passed since Roe v. Wade and theres been no progress on this issue at
the federal level, even when Republicans controlled the White House, the Congress and the
Supreme Court. For those who insist that any abortion ban must happen at the national level I
would point out that 14 is less than 50.
The problem with ignoring the Constitution and arguing this issue at the national level is that
doing so totally misunderstands the importance of federalism, the system of divided power
devised by our Founders. What they understood was that to endow the central government with
the power to good, it must also possess the power to do evil. Furthermore, when a national, as
opposed to local, government does something evil the scope of the harm of that action is much
wider. Its hard to imagine a clearer example of this than abortion.
Incidentally, this same argument applies to the other side of the issue. Most supporters of
abortion would rejoice that their position has been foisted upon all 50 states, but they will
vehemently and hypocritically rail against other federal legislation that would force somebody
elses ideals on them. Ironically, the Roe v. Wade decision was based on a manufactured rightto-privacy provision of the Fourteenth Amendment. Given recent events, isnt the federal
government an odd place to repose the protection of privacy?
For opponents of abortion, there is clear evidence that the number of abortions would drastically
decrease if the states regained their constitutional right to decide their own policies on this
matter. Why then do opponents of abortion eschew the constitutional argument? Are they
unable to see the cause and effect of nationalizing this issue? Are they more interested in trying
to harness the power of the federal government than they are about actually reducing the number
of abortions? These are questions to which I have no answer.

What is clear is that to continue to pursue this issue at the national level is utter folly. If
politicians like Marco Rubio are truly interested in an effective strategy that is also
constitutional, the path is before them: return the issue to the states. Not that the states need to
wait. They could just decide that 40 years of usurpation is enough and nullify federal abortion
laws on their own. At least one state has already started this process. Who will be next?