Tuesday, May 17, 2022|
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The expected Supreme Court ruling overturning Roe v. Wade is an affirmation of America’s beleaguered federalist system.
If the final opinion from the court mirrors the leaked draft, the court will be making a clear statement: States matter.
The justices, if the draft holds, found no constitutional support for Roe’s declaration that abortion is a fundamental right. That makes it a statutory issue. Ending Roe will return abortion regulation to the states to decide, unrestrained by the restrictions imposed in the court’s 1973 ruling.
That offers the chance — though admittedly a slim one — to finally quiet this 50-year-old front of the culture wars by letting the people decide what rules will guide their lives.
The Founders, recognizing the vastness and diversity of America, never intended for it to be ruled by a one-size-fits-all set of dictates. The federal government was drawn to be deferential to the states in most instances.
That federalist principle has eroded considerably, so that now Washington calls most of the shots and Americans, no matter where they live, must abide by the same rules.
The court’s decision will restore — and test — the right of states to govern themselves in a manner that reflects the values of their citizens. Different states will adopt different laws. That’s both inevitable and desirable if the hope is to satisfy the maximum number of people.
There are eight states, mostly in the South, where support for banning abortions enjoys a 10-point or greater advantage over keeping them legal, according to a New York Times analysis. They are also largely the states that have adopted the most restrictive recent abortion laws, and are likely to ban abortions outright once Roe is gone.
By contrast, in 23 states residents favor legal abortions by more than 10 points. Many of those states already have enacted pro-choice legislation that will keep Roe’s provisions in place.
But some, including Michigan, have not. Here, the post-Roe void will be filled by a 1931 law that criminalizes all abortions.
That’s not where a majority of Michigan voters stand. Nor do they want a wide-open, everything’s legal environment.
But crafting reasonable abortion policy in Michigan and like-minded states will be much more difficult, and the process more contentious.
That will make state elections much more important. The lawmakers and governors who will decide what the new abortion environment in each state looks like will be elected this fall.
The question is whether the conversation on abortion in those states will continue to be dominated by the most extreme voices, or will voters see choices on the ballot that reflect the middle ground?
Michigan residents consistently support keeping abortion legal. They also consistently support regulations that assure the abortion choice is made early in the pregnancy. Support for abortions after the first trimester drops off sharply, and is almost non-existent for third trimester terminations.
If that’s the sort of moderate abortion policy they want, then they should elect politicians who advocate for those policies. But ultimately, it will be the citizens who decide what’s right for their state. And that’s what the Constitution wanted from the beginning.
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