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Red and Blue States Should Pass Their Own Abortion Laws

US President Joe Biden. Image Credit: Creative Commons.
US President Joe Biden. Image Credit: Creative Commons.

Hours after a leaked draft opinion showed Roe v. Wade hanging by a thread, President Joe Biden spoke out against the Supreme Court sending abortion policy back to the states. Citing other liberal precedents that may now be in danger, Biden said, “I’m not willing to leave that to the whims of the public in local areas.”

Except that may be the only way forward in a country deeply divided and wracked by culture wars: letting state governments decide these issues with democratic accountability, with residents voting at the ballot box and with their feet.

Allow red and blue states to pass their own abortion laws. The former will expand legal protections for unborn children. The latter will allow abortion on demand, with some exceptions. This also happens to be the system set up by the Constitution, allowing local variety and liberty to thrive even amid deep disagreements.

That is not the direction Biden’s party will go in if Roe does in fact fall when the Supreme Court finally rules in Dobbs v. Jackson Women’s Health Organization. Democrats and the White House would like to impose Massachusetts’ abortion law on Mississippi or Missouri, passing a federal statute that purports to codify Roe but would actually go beyond it by nullifying state-level restrictions permitted by Planned Parenthood v. Casey

Not only would this be an escalation of the nearly 50 years of division the country has endured under Roe. It would also probably produce an even more erratic abortion policy, given the frequency with which Congress changes hands. Republicans are heavily favored to win both houses this November. Of course, Senate Democrats are struggling to cobble together the votes to do this now.

Just as they would like to see abortion rights secured from sea to shining sea, many of Biden’s political opponents would like to see every child protected by law and welcomed into life, per the George W. Bush catchphrase

“We know from embryology… not Scripture or philosophy, that abortion kills a unique member of the species Homo sapiens, an act that in almost every other context is forbidden by the law,” argued New York Times columnist Ross Douthat.

But that is not the cultural consensus in the United States any longer, as increasingly few things are. 

Not only does the country have the opportunity for a real experiment in federalism. Both sides of the abortion debate will, if the justices permit, have the chance to compete in terms of who can best craft just, as opposed to symbolic, laws that protect mothers and their children.

The work of the pro-life movement will not end with the reversal of Roe, though that has long been its goal. Making abortion unthinkable will require more support for mothers in difficult pregnancies and their babies than ever before, not all of it — and perhaps not even most of it — from government. 

Principled opponents of abortion will for the first time in almost a half century be able to approach this not as election-year culture war fodder but as a real human rights and social justice issue. We can make plain that the purpose of this movement is not to curtail the rights of women, but to increase the circle of people whose rights and dignity are safeguarded.

So yes, Republican-led states would once again get to demonstrate why they are a better place to live than reliably Democratic-led ones. But pro-lifers of all political persuasions would be able to demonstrate why their vision better meets human needs than that of Planned Parenthood. They can also prove that women do not have to sacrifice their educational or professional attainment and indeed their civil rights if they do not sacrifice their children. 

There is no guarantee that the pro-life side will rise to the challenge. Laws in which neighbors inform each other, for instance, do not seem like wise policies. Pro-lifers will overreach with legislation that conforms to the pro-choice stereotypes of their motivations, penalizing women rather than third parties. 

But as long as Roe and any statutory imitators Biden may craft remain in place, there is no room for this noble experiment in self-government. We’re not guaranteed things get any better, but the fall of these dominoes are a prerequisite for it happening.

Now a 1945 Contributing Editor, W. James Antle III is the Washington Examiner’s politics editor. He was previously managing editor of the Daily Caller, associate editor of the American Spectator, and senior writer for the American Conservative. He is the author of Devouring Freedom: Can Big Government Ever Be Stopped? You can follow home on Twitter: @Jimantle.

Written By

W. James Antle III is the Washington Examiner's politics editor. He was previously managing editor of the Daily Caller, associate editor of the American Spectator, and senior writer for the American Conservative. He is the author of Devouring Freedom: Can Big Government Ever Be Stopped?