I’ve been hearing a lot of debate recently over the role Federalism plays in the abortion issue. Many conservatives seem to think that the Federalists would be appalled by our attempts outlaw gay marriage and abortion on the federal level. I find myself hesitantly agreeing with the first claim—I’m still waiting on a convincing argument why D.C. should get involved with marriage despite my stated objections to same-sex unions—but completely baffled by the second.
There has been a pronounced paradigm shift between the Federalists of the 18th Century and the Federalists of today. The former sought an energetic federal government with several hedges—divided power, popular sovereignty, and frequent elections, to name a few—to prevent tyranny. The latter seem to think the Federal government should be a largely-impotent caretaker of the system they have been given, and that all issues which directly affect the people should be dealt with by the states and the states alone. (Ironically, I’d say that the Federalists of now more closely resemble the Anti-Federalists of then.) The battle over abortion presents a clear example of where modern Federalisms departs from Constitutional Federalism.
Why didn’t the purely federal government work? Because the states were incapable of preventing they tyranny of majority faction (Fed. 10).
What’s majority faction? A majority of the populous “united and actuated by a common impulse of passion,” who are hostile to, or in the least indifferent to, the rights of the minority (Ibid.).
How can we prevent majority faction? By establishing a large republic that is “neither a national nor a federal [republic] but a composition of both” (Fed. 37, 39).
Now, let’s apply this check on majority faction to the abortion debate. By leaving the decision up to the states, are the rights of a segment being disregarded by one of the prevailing faction*? Necessarily, unless all 50 states agree on the right answer (which is improbability bordering on impossibility). Either the fetus is alive and legalizing abortion is infringing on its rights—all of its rights, since every right promised by the Declaration and guaranteed in the Constitution is predicated upon life—or the fetus is not alive and proscribing abortion is infringing a woman’s right over her own body.
At the end of the day, abortion is not a states’ right issue but a human rights one. Either a fetus is alive and an abortion is its state-sanctioned execution, or it is not alive, or not alive until a certain point, and outlawing the practice is an intrusive governmental foray into a woman’s health. The new batch of conservative politicians who argue otherwise are either honestly ignorant as to the position they are defending or shamelessly marketing themselves to moderate Republicans.
*- I know abortion is a very complex issue and that there are vastly more than two sides. For the sake of clarity, though, I’m limiting the discussion to the two encompassing parties: pro-life and pro-choice.
