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Schiavo, Roe, and Federalism

Everything related to the Terri Schiavo case is covered by the Decembrist's first rule: If I don't have something interesting to say, that hasn't been said several times by others, leave it alone. And generally I don't just quote from other people. But this post from the American Constitution Society blog seemed worth noting:

If Roe Falls, Would the "Culture of Life" Trump Federalism Yet Again? by Sarah C. von der Lippe

Republicans acknowledged that the intervention was a departure from their usual support for states' rights. But they said their views about the sanctity life trumped their views about federalism. ("Congress Steps In on Schiavo Case, Lawmakers to Pass Bill to Resume Feeding, Allow Court Review", By Mike Allen and Manuel Roig-Franzia, Washington Post Staff Writers, Sunday, March 20, 2005; Page A01)

This piece of reporting highlights a terribly important bit of legal hypocrisy on the part of right-wing conservatives. Everytime they call for appointment of judges to the Supreme Court who will overrule or undermine Roe v. Wade, they assert that the matter should be left to the states. They assert that even if Roe v. Wade is overturned, it won't eliminate abortion in the states in which the duly elected state representatives do not take steps to outlaw the practice. But the Schiavo case reveals the true priorities of the right: they are happy to abandon the principles of federalism if the issue is related to questions of "life." But if they are willing to cast aside federalism in the Schiavo case, won't they be willing to do the same in the context of abortion? And if they are, won't that inevitably lead to attempts to pass federal legislation banning abortion? The actions of conservatives in the context of the Terri Schiavo case should give us pause as Bush nominates new justices to the Supreme Court -- especially, given conservatives' admitted goal of denying women's constitutional right to privacy and reproductive choice.

Good question.

Posted by Mark Schmitt on March 25, 2005 | Permalink


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So, this suggests that if Roe is overturned, Congressional Republicans will feel pressure from their right to enact federal anti-abortion legislation and will act on that pressure. What happens then? Republican rhetoric about abortion meets up with political reality at a national level. That's what happens. And, it is not clear to me that this leads Republicans or the anti-abortion folks where they want to be. Rather, it seems likely to lead to much political pain for Republicans as well as a decisive (and democratic) national level loss for the "pro-lifers."

See http://www.pollingreport.com/abortion.htm for some evidence that national level abortion legislation that puts greater limits on abortion than we have now is a political loser.


Posted by: SS | Mar 25, 2005 12:01:18 PM

"Federalism" is a concept that is taken seriously by the goody-goody parts of the chattering classes--and nobody else. Otherwise, it is just another bludgeon in the hands of tacticians. And not a very good bludgeon, either--it is dragged out only when nothing better will do--when "freedom" or "liberty" or "justice" sound even more ridiculous than they usually do.

Let's just ignore it as a substantive concept.

Posted by: Joe S. | Mar 25, 2005 5:13:19 PM

"Partial-birth" abortion should be a part of this story too, no? Ever since they saw fit to ban it federally, I don't see how they can plausibly argue they wouldn't do the same with abortion if possible.

Posted by: John Minot | Mar 25, 2005 8:55:09 PM

I foresee a case where Jeb Bush will try to take custody of the news-item's fetus.

Posted by: Laura | Mar 26, 2005 10:03:47 AM

I'm not sure it would even get that far. The Republican leadership has shown little desire to actually carry out the agenda Dobson is demanding b/c it would alienate too many voters. Much of America is just plain turned off by those guys and the opportunists in charge know that.

If they throw Dobson a bone and get Roe v Wade overturned, there is no way they will continue down that road and make abortion illegal at the federal level. The popular backlash would be too intense.

Posted by: heet | Mar 26, 2005 10:18:34 AM

I don't think that the reactionaries are terribly concerned about the consistency of their rhetoric. Rather, it seems their tactic is to tie their program to whatever conception seems likely to make it most palatable to the largest number of people and then run with that. A fine example of this can be seen is the changing rationales that they've put forward for tax cuts. Or their claim that capping malpractise awards is to make medical care more available. Or the dispute over 'private' and 'personal' social security accounts. Or the notions that 'bankruptcy reform' is to prevent fraud and so hold down interest rates. And so on. Really, it seems more profitable to completely ignore what they're saying and just focus on what the consequences and who the beneficiaries of what they're doing will be.

Posted by: optional | Mar 27, 2005 11:04:09 AM

Well, we already know what will happen if purely expedient "federalism" and anti-choice conflict: Congress has already passed an abortion ban. While Congress faced other constraints, federalist concerns will not constrain the GOP from pushing for abortion legislation, and abortion would absolutely without question remain a national issue.

Posted by: Scott Lemieux | Mar 27, 2005 11:44:39 PM

I am a social conservative who regularly reads this site to expose myself to opposing points of view. I see a salutary effect emerging from this case, viz., there will be many states that will soon disallow the disconnecting of feeding/water tubes unless there are written instructions to the contrary. Thus, the default position will be to feed and hydrate, unless the patient has a legally-executed set of written instructions stating otherwise. This change will re-define what the term "clear and convincing" means, giving no credence to oral declarations. Such changes are already making their way through multiple state legislatures. Once these changes are enacted, the current Schiavo scenario, based on a "recovered memory" by a spouse, will not play out again. Since liberals have been arguing for the primacy of state law on these matters, there should be no principled opposition from those on the left, should there?

Posted by: LMA | Mar 28, 2005 11:11:17 AM

Why assume that a Federal law would be needed to outlaw abortion? Lets say we get a few more justices like Scalia who believe that human life begins at conception. If that is the case then the fetus is a "person" and under the 14th Amdt is entitled to "Due process of law". Ergo no right to an abortion. Don't laugh, Corporations are "persons" so why not fetus.

Posted by: richard lo cicero | Mar 28, 2005 11:16:18 PM

Let's take stock: the Schiavo case demonstrates that the Right to Life trumps historic GOP positions on

States's Rights,
Activist Judges and
The Sanctity of Marriage.

If DeLay can find a way to disown tax cuts and national defense, he will have entered the perfect storm.

Posted by: morajokaj | Mar 28, 2005 11:36:42 PM

richard lo cicero made the point I was going to.

Perhaps Delay could come up with a bill that creates a sin tax on abortions with the proceeds earmarked to providing futile care.
National Defense is trickier...the situation would have to pit Texas against some liberal coastal state, and a judge rules for the liberal state.

Posted by: theCoach | Mar 29, 2005 9:48:40 AM

A synonym for Culture of Life: Fear of Death

Posted by: Andew Smith | Mar 29, 2005 7:59:53 PM

Defenders of Roe worried that the GOP may not be serious about respecting federalism if it is overturned? Why should that concern you, you've never been enthusiastic about federalism or you would not support Roe in first place. Ignoring first principles, and then demanding your opponents to respect them is bad sportsmanship. If it comes to pass, you will have merely reaped what you have sown.

p.s. A corporation as a person is a lot harder to get one's mind around then a fetus a person, since the latter is an actual living human individual. Your rationalizations have gone to your head.

Posted by: MJ | Apr 1, 2005 7:18:40 PM

If Roe is overturned, real live children - not just some ideal - will be the result. Check out gov't stats: Since 1973, nearly 40 MILLION abortions have taken place.

Hence, 2 simple questions:

1) Women typically have serious reasons for aborting, ie; medical, too young, rape, incest, fleeing abuse, too poor and so on. If these mothers can't afford their child, who will pay for hospital birthing costs? How about millions of them? (It's assumed the father won't/can't pay.)

2) Who will pay to raise and educate these non-aborted children? (Fact: Today, aproximately one million homeless kids are floating around the US. This number is NOT inclusive of homeless adults NOR kids in state/foster care.)

For all the lip service about the sancity of life from the pro-life crowd, what plan, if any, has been proprogated to support a new reality of millions of non-aborted children from 'birth to 18 years'? Medical, nutrition, shelter and education are expensive and can not be escaped. If there is no plan, is it moral to coerce birth(s) - based on another's beliefs - then abandon these children? Are we talking family values here?

Seems to me, if Pro-lifers were genuinely concerned about the lives of children, they've plenty of work to do TODAY, based on horrific government statistics, to overcome our current crisis of a multitude of parentless and homeless children.

One last thing ... forcing women to bear babies they otherwise wouldn't have, will forge an unbearable misery index containing inherent dangers. The first is condemning women to dispair, hopelessness and helplessness. Fact: rapes, incest, abuse, medical problems and poverty will NOT stop. Thus, the ratio need for abortion will remain equal.

Second, if our nation were to churn out millions of discarded, hungry, angry kids who generally won't ever have the kind of life TV presents as normal, look out as they grow into unrestrained teenagers roving in gangs who've accepted them because no one else wanted them. If we're having a problem with gangs now - enough to make gang related crimes a federal offense - what will happen, say 20 years from now - extrapolating current trends - when 40 million or so kids are having babies themselves and worse, are violent. In the mildest terms possible, I'd venture to say, they'll lash out at society, especially the wealthy. Possibly, there won't be a country club left standing. Thoughts?

Posted by: Pavane | May 19, 2005 3:27:42 AM