Donald Trump has stirred up controversy among conservatives after stating that access to abortion should be decided by states. Several GOP members expressed their dissatisfaction given that Trump had previously backed a federal abortion ban.
Whatever side of the abortion debate you’re on, we should at least agree that it’s an issue that should be decided at the federal level. That’s because it’s a rights issue where the stakes are much too high.
If you’re pro-choice, it’s likely that you believe it’s a fundamental right for a woman to decide whether to go through a pregnancy and all of the possible hardships that may follow. Since you believe this, then you should want all women to have this right, which can only be reliably secured at the federal level.
If you’re pro-life, then you probably believe that fetuses have rights that are unjustifiably violated when they are killed during abortions. So, you’d want all fetuses to be protected, not just those in your own state. Again, the best way to go about protecting prenatal life is through federal legislation.
In effect, people on both sides of the debate are attempting to prevent massive rights violations. We would be understandably horrified at the suggestion that something like freedom of speech or the right to due process should be left up to states. To be clear, there could be times when decisions about rights may be left to the states. For example, states may vary in the extent to which they protect an individual’s gambling or drug freedoms. But it’s important to distinguish such matters from ones where lives are at stake and where a woman’s life can be catastrophically impacted.
So what exactly are the reasons for thinking that this rights issue should be determined at the state level?
One reason appears to take practical considerations into account as opposed to moral or legal elements. A 2023 Gallup poll indicates that 52% of adults in the US identify as being pro-choice while 44% identify as pro-life. Clearly, it’s an issue that Americans are deeply divided about. Since Americans are so divided, and the division often follows state lines, perhaps it’s best to let state legislatures decide.
My previous point applies here. This approach only appears reasonable when the interests involved are relatively innocuous.
Legally speaking, one could argue that it has already been determined to be a federal concern. The Supreme Court decided to hear Roe v. Wade and in its decision effectively confirmed that it’s a matter that should be decided at the federal level.
On the other hand, the supreme court overturned Roe v. Wade, offering the reasoning that the Constitution does not confer a right to abortion. This by itself does not suggest that it’s not a monumental rights issue. Note that it would still be a rights issue given that the interests of fetuses are still at stake. It’s also important to acknowledge that most Americans do not fall into one extreme or the other. Approximately 71% of Americans believe that abortion is sometimes permitted – they vary in when they think the rights of the fetus outweigh the rights of the mother.
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Aside from this, the 9th Amendment allows the federal government to secure unenumerated rights. Since access to abortion is a prima facie right, it could plausibly fall under the 9th Amendment. Which is not to say that this demonstrates that the Constitution does in fact demand of the government that it protect the right to abortion. Rights can be restricted when there are overwhelming reasons to do so.
Perhaps, if it’s wrong to kill a fetus after a certain stage of development, then the prima facie right of the mother would be outweighed by the interests and rights of the fetus. The government could be justified in introducing some restrictions in that it has a significant interest in protecting that life.
But the point is that it’s such a significant rights issue that it should not be left up to states, particularly when it’s clear that all states will succeed in restricting someone’s rights, whether it’s mothers or fetuses.
Leaving it up to individual states has the unfortunate side-effect of effectively guaranteeing an asymmetric distribution of fundamental rights in the US, which is something that the Constitution is supposed to protect us from.
Rafael Perez is a doctoral candidate in philosophy at the University of Rochester. You can reach him at rafaelperezocregister@gmail.com.