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Fritz Feds

Sunday, January 22, 2006


Will Baude of the weblog Crescat Sentenia, and a Yale 2L, has an op-ed in today’s NYT in which he describes the chaos that (he believes) would follow were Roe overturned.  

“It's unlikely that Congress would pass a comprehensive federal ban on or right to abortion. So in the absence of Roe, states would largely be free to regulate the issue as they saw fit. Some states would permit abortion on demand, while some would ban it; many would fall somewhere in between. A patchwork of state abortion regulations, however, will lead not to compromise, but chaos.”

You know, he had me right up until the chaos part.  It goes downhill from there, as he forecasts situations restricting a woman’s ability to travel, the exercise of long arm statutes to nail women who do travel to have abortions, and a clash, ultimately in the courts, between states on different sides of the issue.  He continues:

“Indeed, American democracy has rarely resolved moral battles of this scope at the state level. The most significant moral conflict ever devolved to the states, after all, was slavery. The problem of escaped slaves made it necessary to include a Fugitive Slave Clause in the Constitution, but it was impossible to contain the moral controversy within state borders. Disagreements over how to determine who was a fugitive slave, how to regulate slavery in the territories, and how to maintain the balance of power between South and North meant that slavery would inevitably become a federal issue. "A house divided" could not stand.”

Cliché abuse aside, I don’t think invoking the legacy of slavery is proper here.  Yes, both are/were important moral issues, but you know, if you really wanted to invoke slavery, you could point out that the issue with abortion isn’t that “states can decree that life begins at conception” as Baude frames it, but rather who is entitled to the legal protections of personhood.  Ultimately though, using slavery as a comparison just isn’t that useful for modern circumstances, and tends to distract from the issue at hand.  Baude may be right, there could be significant problems following Roe’s ouster, but that doesn’t mean that (what is widely conceded to be) an incorrect decision by the court should be allowed to stand, just for the sake of having the law “settled”.  As Baude acknowledges, abortion (and Roe) is a serious moral issue, and maybe some kind of battle (his word) over it is needed, though I tend to doubt that post-Roe troubles would be as bad as he projects.  In any case, this isn’t exactly civil war provoking stuff, and I think that it could provide a useful exercise in federalism for a country sorely in need of one thirty-three years after Roe.    


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