Supreme Court Confirmed that the Constitution Delegates Abortion to Federalism


    It's less in that by itself, the decision prohibits only a handful of abortions. It's true that you might not realize that until you are honest with what President Biden said on June 24, 2022:

    This morning, the Supreme Court of the United States specifically removed rights under the Constitution of the American citizens that it had already acknowledged. They didn't restrict the right. They just took it away. It's like it never happened . . . But they did it.

    But despite all the screams from Democrats, the left wing media, and outrage-mongers, Dobbs simply returns the issue of abortion back to the states, allowing the states to decide. Therefore, when Rep. Maxine Waters (D-CA) declared that Americans ought to “defy” the Dobbs ruling and Sen. Mike Lee (R-UT) said by saying that there's no reason to defy. This is the beauty in federalism. It's also referred to as states rights.

    The idea of Federalism — that states have the right to rule over all matters on their own — is solidly enshrined in the Constitution. In fact, as was explained within the Federalist Papers, the 85 essays written in 1787-1788 were designed to rally supporters for the ratification of the Constitution. The states in many ways have superiority to the federal government. For example, in Federalist 45 James Madison, principal creator of the Constitution wrote, “The State government will have the advantage of the Federal government.” Why did he say that? One reason is that Madison stated that the states, since they are more close to home, will be more likely to benefit from having the “probable support of the people.”

    In case there is any doubt about the significance of the state, back in 1791, the Founders adopted the Tenth Amendment, which reads in entirety:

    The powers that are not granted over to the United States by the Constitution and not restricted by it to the States are reserved to the States and, if applicable, to the American people.

    The concept is that unless the power is explicitly granted over to the Federal government, such as the power to declare war, it's reserved to states or the citizens.

    The idea of federalism is in large part an issue of procedure. Federalism doesn't try to determine which is better, but rather, it provides an opportunity for States to make their own judgments about what they believe to be good or not. In the words of a famous Supreme Court justice from an earlier time, Louis Brandeis, states would be the “laboratories of democracy.”

    The ease of federalism is an important reason for why the Constitution has been so effective over the last three centuries. It doesn't provide the best answer, it just lays out the method of coming to the most appropriate solution. That's the reason why the Constitution as a tool to ensure effective governance is just as relevant today in the age of the internet as it was in the time of the quill pen.

    Abortion, which is not explicitly mentioned in the Constitution, is precisely the kind of thing that ought to have been left in the hands of the states. Unfortunately, and in a way that was unwise during the 1973 Roe V. Wade case, the Supreme Court chose the path of federal intervention, setting an entirely brand new “right” to abortion out of only its own desires and feelings. The abuse of power that resulted is at the heart of the battle over the past fifty years; constitutionalists teamed up with pro-lifers in expressing their displeasure at “legislators in black robes.”

    Justice Samuel Alito wrote for the majority of the court “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” Alito added, “Roe and Casey [a similarly decided case from 1992] arrogated that authority.” However, today, with Dobbs the entire process is gone. The judge concluded: “We now overrule those decisions and return that authority to the people and their elected representatives.”

    It is interesting to note that even those who speak most strongly against the Dobbs decision are able to come up with a method to prove its constitutionality. For example, New York State Attorney General Letitia James blasted the court's “vicious decision,” labeling the decision “one of the darkest moments in the history of this nation.” Okay, it's fine that she doesn't agree with the decision. Then she said, “Make no mistake: While other states strip away the fundamental right to choose, New York will always be a safe haven for anyone seeking an abortion.”

    To assert it is likely that New York will do its own thing is the essence of federalism, precisely like James Madison and the Founders wanted. Because New York has a different reaction to Dobbs as opposed to, say, Alabama, it will adopt different laws. If the Constitution is followed, New York and Alabama will be able to do what they would like.

    It is interesting to note that one of the men who was once of the people who believed states should have plenty of flexibility in regulating abortions was Joe Biden.

    In March 1982, Sen. Biden of Delaware was a member of the Senate Judiciary Committee to effectively overturn Roe as he supported legislation which would have restored the power of Congress or of states, to prohibit abortion. The text Biden was in favor of “A right to have an abortion is not protected by the Constitution.”

    The report from The New York Times forty years back, “The vote today marked the first time that a full Congressional committee had supported an anti-abortion amendment and opened the way for a full-fledged floor debate on the issue.” It is worth noting that Biden was among the arch conservatives such as Senator Jesse Helms (R-NC) and opposed arch-liberals like Senator. Teddy Kennedy (D-MA). As a young man, Biden was very flexible.

    In 1982, the pro-Roe legislation that Biden supported was defeated in the Senate. The following year, Biden voted against the same measure. In the past, Biden was described by abortionists as having a “mixed voting and rhetorical record on the issue.” This means that when Biden was in the state of Delaware, which was then an intermediate swing state, Biden was, well, cautious.

    If the current liberals believe that abortion is a popular and good idea to promote it, they ought to be ready to take around the globe on the subject. Some are. For example, on June 24, Robert Francis “Beto” O'Rourke, the Democratic candidate for governor of Texas, tweeted “We will overcome this decision in Texas by winning political power.”

    See? All you need to do is run with a platform for abortion at any time and for any reason — and win election to the Lone Star State and change the laws to be in favor of those who are Planned Parenthood donors. Any questions?

    In actuality, the road for those who advocate abortion may not be easy. According to The Washington Post, reported on June 24, the issue “will now be decided by state legislatures, as it had until Roe was decided in 1973, and could lead to the procedure being banned in more than half the states.” It's interesting. More than half of the states. It's like the diversity of thought protected by federalism, is manifesting itself.

    We can conclude the following: The Madisonian federalist system may appear to be small, but it's actually massive. It's massive enough to have held this huge nation together by acknowledging the global nature of our diverse nature.

    Let's take a look at the ways that Dobbs' decision was a significant one. The Dobbs decision was more than mere text on the paper.

    Dobbs is huge. Let’s look at four reasons: 

    The first is the massiveness of the victory achieved for the right-to-life movement. In 1973, the Supreme Court voted 7:2 for Roe and most people believed that the issue of abortion was resolved. This was a liberal decision in a time of liberality which is why they thought, what's not to love?

    However , not everybody liked Roe. The National Conference of Catholic Bishops immediately rebuked the decision and Catholic organizations like The National Right to Life Committee which was already in existence were invigorated. In the year 1978 or so, the Protestant evangelicals were also completely mobilized. (In the year 2019, this writer described the tumultuous politics that erupted in the early days of the Roe battle, in which so many Democrats were caught off-guard by changes in the political terrain.)

    From 1973 until 2022, it was a march of 49 years against abortion. 7 times 7. It's like a biblical recitation. Even if the source of inspiration for many was from the heavens, the hard-slogging labor of those 49 years was always on the ground and on the battlefields. According to the conservative lawyer Casey Mattox:

    The pro-life movement established institutions, removed obstacles, created arguments, conducted research, and aided the candidates … And spent 50 years trying to achieve this outcome even in the face of repeated losses. Change could occur. Do not quit. Apply this principle in other fields.

    Then, this Dobbs ruling is significant in that it is a rejection of the notion that has shaped liberalism for the last half-century or more and of a federal authority that has the knowledge of what is best in regards to culture and that the states — as well as their citizens, should bow to their Beltway counterparts.

    It is true that this idea of supreme federalism was a contradiction of Madisonian federalism. However, that was fine, as per supporters, since liberal experts had the right and accurate response to any question. So on a long list of subjects–school prayer, affirmative action, quotas, transgenderism, gay marriage, abortion — the federal government, led by the judiciary, became supreme rulers.

    Initially awed by this legalistic attack, both federalists and conservatives tried to establish their position. When they finally did so, they realized that they had the support to stand up and they began winning elections.

    In fact, the backlash against liberals caused a sad reconsideration by those on the left. They now recognize that judicial imperialism has no place in society. In a piece on behalf of The Yale Law Review in 2011, two liberals said, “Evidence from the post-Roe period suggests that it was party realignment that helped escalate and shape conflict over Roe in the ensuing decades.” They further stated, “The backlash narrative suggests that turning to courts to vindicate rights is too often counterproductive.”

    Third, many progressives are apathetic about courts, at least in the way they are usually viewed. Rep. Alexandria Ocasio-Cortez (D-NY) immediately branded Dobbs as being “illegitimate” and called for the public to go “into the streets.” AOC's co-squad members Rep. Ilhan Omar (D-MN) tweeted, “expand the court.”

    It was clear that an employee of The Washington Post was on it:

    Democrats must advocate for major reforms to the structure of the court system, to correct the irreparable Republican impureness of the court. It could mean the limitation of justices' terms, as well as expanding the scope of court or restricting its power by legislative reforms such as restricting its authority and requiring a supermajority to alter laws and allowing legal overrides to rulings.

    It's known as court-packing, and it's not a good choice of an idea, even though it's always well-liked by the hard left who is content to nominate any number of its comrades to achieve its goals. 

    Fourth, Justice Alito's writing for Dobbs is as extensive–and amazing, as this country. It is the home of a population with 332 million people located across 50 states and a variety of territories. Therefore, we naturally have our differences. We are, in every way, unique.

    The best way to resolve the issue is to not choose, or at least not in a central manner. Because of Dobbs, states will now make the final decision. Outside of the Capital Beltway, the people control the government.

    The largely unremarked Roe decision is a product of a time when people believed that one size fits all was a good thing and that a winner-take-all system was better. Liberals believed that they could get all the marbles and thus get everything they desired. All they needed to do was beat the states.

    Yet, the United States as well as her  people have a four-word answer: “Don't tread on me!. Now it's an overreach of the liberal kind that's being tread on.

    To be sure, the federalist-constitutionalist fight over abortion is not over, because no political or moral fight is ever over. The left isn't giving up. If the Democrats are victorious in 2022, they'll be back in the game trying to restore Roe.

    However, if we take the fight that we just won, then we could beat the next opponent, also, and then the next fight following that. All we have to do is be vigilant to our constitutional rights.


    Please enter your comment!
    Please enter your name here