Pinkerton: The Supreme Court Confirmed That the Constitution’s Solution for Abortion Is Federalism

The Supreme Court’s decision in the Dobbs case is both smaller and larger than it might first appear. 

Smaller Than It Seems

It’s smaller in the sense that in and of itself the decision bans precisely zero abortions. To be sure, you might not know that to hear President Biden, who said on June 24:

Today, the Supreme Court of the United States expressly took away a constitutional right from the American people that it already recognized. They didn’t limit it. They simply took it away. That’s never been done . . . but they did it.

Yet despite all the hyperventilating from Democrats, the left-wing media, and outrage-mongers, Dobbs merely returns the question of abortion to the states, leaving it for them to decide. So when Rep. Maxine Waters (D-CA) said that Americans should “defy” the Dobbs ruling, Sen. Mike Lee (R-UT) responded coolly that there’s nothing to defy. That’s the genius of federalism, also known as states’ rights.

Federalism—the idea that states should have the sovereignty to decide most matters for themselves —is firmly embedded in our Constitution. Indeed, as was argued in the Federalist Papers, the 85 essays published in 1787-1788 aimed at rallying support for the ratification of the Constitution, the states in many ways are prior to the federal government. For instance, in Federalist 45, James Madison, principal author of the Constitution, wrote, “The State government will have the advantage of the Federal government.”  And why was this? For one thing, Madison argued that the states, being closer to home, are more likely to enjoy the “probable support of the people.” 

Lest there be any doubt about the importance of the states, in 1791 the Founders enacted the Tenth Amendment, which reads in its entirety:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The idea here is that unless a power is specifically delegated (granted) to the federal government—such as the power to make war—then it is reserved to the states or to the citizenry.  

In other words, the idea of federalism is substantially a matter of process. Federalism doesn’t seek to define what is good or bad, it merely lays out a mechanism for the states to make their own choices as to what they deem to be good or bad. Thus the states, in the famous words of a Supreme Court justice from an earlier era, Louis Brandeis, would be the “laboratories of democracy.” 

The simplicity of federalism is a big reason why the Constitution has been so successful these past three centuries: It doesn’t declare the right answer, it simply stipulates the procedure for arriving at the best available answer. Which is why the Constitution, as a tool for good governance, is as relevant in the age of the internet as it was in the age of the quill pen. 

Abortion, not mentioned in the Constitution, is exactly the sort of issue that should always have stayed with the states. Unfortunately and unwisely, in the 1973 Roe v. Wade case, the Supreme Court chose the path of federal intervention, making up a new “right” to abortion out of nothing more than its own whim and fancy. That abuse of power has been a crux of the fight this past half-century; constitutionalists joined with pro-lifers to inveigh against “legislators in black robes.” 

This year, Justice Samuel Alito wrote for the majority, “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.”  Alito continued, “Roe and Casey [a similarly decided case from 1992] arrogated that authority.”  But today in 2022, with Dobbs, all that is over.  Concluded Alito: “We now overrule those decisions and return that authority to the people and their elected representatives.” 

Interestingly, even those who fulminate the loudest against the Dobbs decision have a way of proving its constitutional soundness. For instance, New York State’s Attorney General Letitia James denounced the Court’s “vicious decision,” labelling it as “one of the darkest moments in the history of this nation.” Okay, so she doesn’t like the ruling. But then she added, “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 say that New York will do its own thing is federalism at work, exactly as James Madison and the Founders intended. Since New York has a different reaction to Dobbs than, say, Alabama, it will legislate differently. And if the Constitution is properly observed, both New York and Alabama will get what they want. 

Interestingly, one who used to think that the states should have lots of leeway on abortion is Joe Biden. 

Back on March 10, 1982, Sen. Biden of Delaware voted in the Senate Judiciary Committee to effectively overturn Roe; he supported legislation that would have restored the power of Congress, or of a state, to ban abortion. As the  language Biden supported read, “A right to abortion is not secured by this Constitution.’’

As The New York Times reported 40 years ago, “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.”  We might note that in voting as he did, Biden joined such arch-conservatives as Sen. Jesse Helms (R-NC) and opposed such arch-liberals as Sen. Teddy Kennedy (D-MA). When he was younger, Biden was very flexible. 

Back in 1982, the anti-Roe bill that Biden voted for died in the Senate, and the following year, he voted against the exact same measure. In those days, Biden was described by abortion advocates as having a “mixed voting and rhetorical record on the issue.” Which is to say, when Biden represented Delaware, then a moderate swing state, he was, well, cagey.  

So now today: If liberals think that abortion is popular and a good thing to champion, then they should be champing at the bit to run on the issue everywhere. And some are. For instance, on June 24, Robert Francis “Beto” O’Rourke, the Democratic nominee for governor in Texas, tweet-roared, “We will overcome this decision in Texas by winning political power.”

We will overcome this decision in Texas by winning political power.

— Beto O’Rourke (@BetoORourke) June 24, 2022

See? That’s all you have to do: Run on a platform of abortion on demand—any time for any reason—and get elected in the Lone Star State and change the laws so as to please Planned Parenthood donors. Any questions?

Yet in point of fact, the path for abortionists might not be smooth. As The Washington Post reported on June 24, the question “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.” Hmm. More than half the states. Sounds like the diversity of thought, enshrined in federalism, is yet again manifesting itself. 

So we can see: The Madisonian process of federalism might seem small, and yet it’s actually enormous.  It’s enormous enough to have kept this giant country together by acknowledging the continent-spanning reality of our diversity.   

Next, let’s consider the ways in which the Dobbs decision was far greater than the mere words on the page. 

Greater Than It Seems

Dobbs is big. Let us count the ways, actually four:

First, there’s the sheer enormity of the victory for the right-to-life cause. Back in 1973, the Supreme Court voted 7:2 for Roe, and most observers thought the abortion matter was settled. It was a liberal decision in a liberal time, so what’s not to like? 

Yet in fact, not everyone liked Roe. The National Conference of Catholic Bishops immediately condemned the decision, and lay Catholic groups such as the National Right to Life Committee, already in existence, were energized. By 1978 or so, Protestant evangelicals had also fully mobilized. (In 2019, this author chronicled the earthquaking politics of the early years of the Roe struggle, when so many Democrats were caught off guard by shifts in the political ground.)

From 1973 to 2022, it was a 49-year march against abortion. Seven times seven. Seems almost biblical.   And yet even if the inspiration for many came from above, the hard-slogging work of those 49 years was always on the ground and in the trenches. In the words of conservative legal activist Casey Mattox:

The pro-life movement built institutions, eliminated obstacles, gave, developed arguments, produced research, supported candidates … and worked for 50 years to produce this result despite repeated losses.  Change can happen. Don’t give up.  Apply this lesson in other areas.

The pro-life movement built institutions, eliminated obstacles, gave, developed arguments, produced research, supported candidates … and worked for 50 years to produce this result despite repeated losses.

Change can happen. Don’t give up. Apply this lesson in other areas.

— Casey Mattox (@CaseyMattox_) June 24, 2022

Second, the Dobbs ruling is big because it rejects the idea that has guided liberalism for the past half-century and more: the idea that the federal government knows what’s best on cultural issues, and so the states—and their residents—should just bow down to their Beltway betters.

Of course, this vision of federal supremacy was the exact opposite of Madisonian federalism, but that was fine, according to proponents, because liberal experts knew the true and correct answer to any question.  So on a long litany of issues—school prayer, affirmative action, quotas, gay marriage, transgenderism, abortion—the feds, spearheaded by judges, were the dictators. 

At first stunned by this legalistic assault, conservatives and federalists struggled to find their footing. But when they did, they found that they had the popular traction to fight back, and then they started winning elections.  

Indeed, the anti-liberal backlash has led to a rueful reassessment from some on the left; they now realize that judicial imperialism is a loser. Writing for the Yale Law Review in 2011, two liberals sighed, “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 added, “The backlash narrative suggests that turning to courts to vindicate rights is too often counter-productive.” 

Third, many progressives have given up on the courts—at least as the courts are normally understood.  Rep. Alexandria Ocasio-Cortez (D-NY) immediately labeled Dobbs as “illegitimate” and called for people to get “into the streets.” And AOC’s fellow Squad member Rep. Ilhan Omar (D-MN) tweeted, “expand the court.” 

Right away, a lefty at The Washington Post was on it: 

Democrats must stand for serious structural reform of the court, as a corrective to the irredeemable Republican tainting of it. This might entail term limits for justices, or expanding the court, or constraining its power with legislative reforms like limiting its jurisdiction, requiring supermajorities to overturn legislation and enabling legislative overrides of rulings.

This is called court-packing, and it’s a loser of an idea even though it’s always popular with the hard left, which would be happy appointing as many comrades as needed to get its way. (Here at Breitbart News, this author has written about court-packing, here and here.) 

Fourth, Justice Alito’s writing in Dobbs is as large—and as great—as this country itself. We are a nation of 332 or so million people, scattered across 50 states and various territories. So of course we have differences; we are, in every possible way, diverse.  

So sometimes the only way to decide a controversy is not to decide—at least not in any centralized way.  Thanks to Dobbs, the states will now decide. There, out beyond the Capital Beltway, the people rule. 

The unlamented Roe decision was an artifact of an age when leaders thought that one-size-fits-all was good and that winner-take-all was even better. Yes, liberals thought that they could win all the marbles, getting everything exactly as they wanted. All they had to do was stomp on the states.  

And yet the states, and their people, had a four-word response: Don’t tread on me. So now it’s liberal overreach getting treaded.

To be sure, the federalist-constitutionalist fight over abortion is not over, because no political or moral fight is ever over. The left has not given up. If the Democrats win in 2022, they will be right back at it, seeking to reimpose Roe.  

However, if we can win the fight we just won, we can win the next fight, too, and the next fight after that.  We just have to always keep up our constitutional guard.