Saturday, November 05, 2005

The Story Not Told as Important as the Story Told: A Case in Point

Earlier today, a pair of stories crossed the AP wire that will probably make most of tomorrow's newspapers. They centered on the future of abortion politics and omitted more than they included.

The first story, "Future of Roe v. Wade abortion decision hinges on Supreme Court makeup," briefly states that even if Chief Justice John Roberts and nominee Samuel Alito both proved to be votes for overturning Roe v. Wade, one additional vote would still be needed to put them into the majority and that vote would likely come from a future nominee replacing one of the liberal justices on the Court. I just mention this story because it leads to the second story.

The second of this pair of stories, "State-by-state battles likely if Supreme Court reversed landmark abortion ruling," omits far more than it really says. This story begins well with its exposition of the intense political battles at the state level should abortion law return to full state control as it was prior to 1973. Then, through both what is in the story and what is not, the media bias shows itself.

Before I dive too deeply into the potential political and legal issues involved, I would be terribly remiss if I did not remind you of the contrasting worldviews that resulting the conflict over abortion. To those of us who are pro-life, abortion is the murder of an unborn child. To those who are pro-choice, this view does not hold and thus the primary moral issue is a woman's control over her body. Thus, given these differences, abortion is bound to always be a controversial issue among those who have taken positions.

If abortion laws are returned to state control, many states--and many more than the reporter would like you to believe--would prohibit abortion except to protect the mother's life or in cases of pregnancies resulting from rape or incest. Some states would restrict abortion to a greater extent than now permitted, but would still generally allow early-term abortions after encountering a few more restrictions. Other states--a list which I submit would include most of the "blue states" but not all of them--would generally allow abortion on demand, at least prior to viability.

Now, the media bias begins. The overt bias is sufficiently easy for an alert reader to detect. Well-to-do adult women from states banning or severely restricting abortion would just travel to California, Illinois, Maryland, New York, or other states with liberal abortion laws. The poor, teenagers, and women in abusive relationships who could not travel would have to get dangerous, back-alley abortions. Although never a part of the formal logic of Roe, these arguments undoubtedly swayed the Supreme Court to seek a rationale for converting its policy preference into legal precedent. On the other side of the equation, there can be no doubt some on the left want to depress conservative enthusiasm for simply returning to pre-1973 case law by instilling a belief that achieving this end would not be worth it.

The second element of the bias is the reporter's deeply embedded thesis that overturning Roe v. Wade would destroy the majority constituency of the Republican Party and the conservative movement in general. I'm sure the press would like to instill some unease among the establishment Republicans of what might happen if we really got our way in the Court. However, this theory still misses the mark: conservatism and the conservative movement--both in politics and in the judiciary--is not a single-issue cause.

If you buy the media's account of this, the GOP and the conservative movement would be finished because if states got the power to outlaw abortion, we would see an uprising of pro-choice voters to defeat those "radical right-wingers" who previously posed no real threat to "choice." Are there really that many people who would vote differently in their state legislative elections if the legality of abortion were an issue and are there enough of them to matter? Also, what about moderate and socially liberal voters who migrated to the Democratic Party? Might they not also reconsider their party allegiances and--seeing that their views will prevail in such socially liberal strongholds as California, New Jersey, New York, and Connecticut, for example--return to the GOP on fiscal issues? This is a two-edged sword that can cut both ways, yet the press sees only one.

I am also sure the media would like to depress conservative enthusiasm for overturning Roe because it would merely return the issue to the states and not--as was primarily advocated in the 1970s and 1980s--ban abortion nationwide. I think most conservatives agree with the statement almost 25 years ago by Judge Bork--for which he was branded as far outside the mainstream and fell victim to the first borking in 1987--that the Constitution is silent on abortion and the underlying issue of a "substantive right to privacy" that forms the basis for Roe. Interestingly enough, the left forgets, is that this was when Bork was testifying against the Human Life Amendment, which would have amended the Constitution to ban abortion nationwide. Absent an arbitrary, constitutionally unfounded, one-size-fits-all standard as is currently in effect, abortion would--at the state level--be tackled in varying manners just as are other moral issues like gambling.

If the states did recover the power to decide their own abortion laws, we would see a political battle over the issue for a while. The most interesting battles would likely be in the states with initiative and referendum, where the question would likely find its way to the ballot and beyond the influence of legislative apportionment, the concentration of more liberal voters in urban areas, and the silence of pro-choice residents of rural areas. Most states would, I believe, decide to directly or effectively prohibit abortion with the 3 major exceptions.

Moving forward, we could see the rise of a new set of constitutional issues that would challenge the political and judicial philosophies of both conservatives and liberals. I believe we could see a real test of the interpretation of the Commerce Clause if Roe v. Wade is overturned. Current case law on the Commerce Clause holds that Congress has broad powers to regulate almost anything in or affecting the stream of commerce between the states or internationally. This is the basis of the vast majority of federal laws that impact us individually. Almost all labor laws, environmental laws, drug laws, and gun control laws are based on regulating interstate commerce.

Suppose the federal government decided to pass federal laws regulating abortion the same way it regulates firearms. Congress has passed certain federal laws to complement state gun control laws. Under federal law, a person cannot buy a handgun outside his state of residence. Long guns cannot be bought outside a person's state of residence unless the legislature of that state has enacted a law authorizing out-of-state long gun purchases. Using this history of legislation and the current case law on the Commerce Clause, suppose Congress passed a law prohibiting the crossing of state lines to obtain an elective abortion and thus limiting a person's ability to obtain an abortion to what can legally be obtained in that person's state of residence just as it has limited one's right to obtain a gun to what the person's state of residence permits. We would undoubtedly generate a new line of cases challenging Congress's powers under the Commerce Clause, putting many people's political preferences & judicial philosophies at odds.

At this point, there are a lot of contingencies that would have to be met. However, let's continue on the presumption that this path is traveled. I believe the Supreme Court incorrectly decided the medical marijuana case earlier this year, even though as a policy matter I would oppose that policy. In that case, the court did so expressly to protect federal powers under the Commerce Clause.

Since I do not believe the Commerce Clause was ever meant by the founding Fathers to accord broad powers to Congress, I support a more narrow interpretation of the Commerce Clause that would eliminate much of the federal government's role in regulatory policy. At this point, we will have a major opportunity to revisit the proper scope of federal power under the Commerce Clause. Since in this hypothetical case, we would be dealing with a direct regulation on actually crossing state lines and not a question on whether a minor connection to a "stream of commerce" triggers the full regulatory authority of the federal government, I cannot predict exactly how the courts should rule on a federal ban on crossing state lines to obtain an abortion in evasion of the laws of a person's state of residence.

All of this depends on whether Chief Justice Roberts, Judge Alito, and the next nominee to the Supreme Court prove to be strong originalist interpreters of the Constitution and determines the Constitution is silent on state abortion laws. However, the fear the left would like to instill among women and its predictions of a GOP/conservative crackup should Roe v. Wade be overturned are both unfounded.