Is Abortion a State or Federal Issue?

Recently, Rep. Ron Paul has signed Personhood USA’s Presidential Candidate Pledge, which calls on candidates to “support a human life amendment to the Constitution, and endorse legislation to make clear that the 14th Amendment protections apply to unborn children.” But he also sent along a statement [PDF link] pledging support for an amendment, but rejecting the idea that the 14th Amendment already applies to unborn babies:

To summarize my views – I believe the federal government has a role to play. I believe Roe v. Wade should be repealed. I believe federal law should declare that life begins at conception. And I believe states should regulate the enforcement of this law, as they do other laws against violence.

I don’t see the value in setting up a federal police force on this issue any more than I do on other issues. The Fourteenth Amendment was never intended to cancel out the Tenth Amendment. This means that I can’t agree that the Fourteenth Amendment has a role to play here, or otherwise we would end up with a “Federal Department of Abortion.” Does anyone believe that will help life? We should allow our republican system of government to function as our Founders designed it to: protect rights at the federal level, enforce laws against violence at the state level.

Personhood USA’s Gualberto Garcia Jones took issue with Paul’s remarks:

If Rep. Ron Paul believes that the preborn are persons under the law, why wouldn’t they be protected under the 14th amendment? Rep. Paul’s vague statement on the duty of the federal government to “protect rights” is without effect if there is no mechanism for guaranteeing those protections.

Though I believe a case can be made that legal abortion does violate the 14th Amendment, and it’s ridiculous to expect a brand-new “Department of Abortion” to result from it, I have no major objection to Paul’s stated position, which highlights an important debate within the pro-life movement: should abortion be left to the states, or should the federal government take over?

Aside from the technical matter of what the Constitution allows Congress to do in Article I, Section 8, a generally good rule of thumb in distinguishing state from federal issues is whether or not people can escape bad policies by voting with their feet. If I don’t like living under my state’s tax rates, business regulations, gun restrictions, drug laws, etc., and I can’t persuade my fellow residents to change them, I can escape their effects by moving to a different state. The way our Constitution insists on a uniform standard for a few things yet allows drastic diversity on everything else is how our system enables so many people with so many differing views and values to live in harmony under a single flag.

Of course, the problem with leaving abortion to the states is simply that unborn babies can’t vote with their feet. They are completely at the mercy of others. It would do them no good for pro-lifers to change states; if anything, that would mean even fewer people around to stick up for a pro-abortion state’s unborn inhabitants.

I think Paul is basically correct about the mechanics of how a federal abortion ban should work—enshrine the right to life in the Constitution, leave enforcement mostly to the states, and only bring the feds back in if states simply refuse to protect the unborn (which, again, wouldn’t require some new federal agency—Congress would simply define the minimum states must do, establishing the criteria with which courts would resolve challenges to noncompliant laws).

Ultimately, leaving abortion to the states is insufficient because abortion is a question of basic human rights, not merely good or bad policy. States should be able to do many things, but allowing the widespread killing of an entire class of people ought not be among them.