What does it mean to leave abortion for the states to decide?

My last post cited a report indicating that as many as 30 states would likely ban abortion if Roe v. Wade were reversed. Ron Paul thinks Roe was wrongly decided. I happen to think it was decided wrongly, if one can admit the difference. Dr. Paul thinks the problem with Roe v. Wade is that it unconstitutionally abrogates the freedom of the states to choose their own abortion laws. Reversing Roe would allow individual states to regulate or ban abortion in whatever way the citizens of those states (or some plurality of them) desired.

As should be expected, I find Dr. Paul's assessment and rejection of Roe v. Wade simplistic. As a matter of legal fact, Roe v. Wade did leave the regulation of abortion up to the states, almost entirely. It did this in at least two ways.

First, and more well known, it proposed different rules for each of trimester of pregnancy. For example, no state can totally ban abortion in the first trimester. In the second trimester, abortion can be regulated, but only in ways that are respectful to the value of maternal health. In the third trimester, a state can ban abortion.

Second, and more interestingly, Roe gave the states wide latitude to regulate abortion in other ways. Planned Parenthood v. Casey saw the Court uphold several regulations on abortion, including a parental notification law and an informed consent law (this latter law requiring physicians to provide women with information about the risks of abortion.) Casey also formally overturned the trimester formula, while preserving its upshot: fetal viability is the point at which states can ban abortion entirely, since that is the point at which a state's interest in the life of that fetus trumps the rights of the pregnant woman.

Thus, Roe and subsequent cases gave the states all the power to ban abortion abortion after the point of viability, and gave it a great deal of power to regulate abortion before that point. Notice that the power the Court did not give to the states does not just vanish into thin air -- rather, it accrues to women, especially those seeking abortions. Overturning Roe would give state governments the rest of that power.

Now the difference between wrongly decided and decided wrongly is this: as a libertarian, I think individuals -- women -- should have most of the power, because I value individual liberty and have a problem with governments taking power away from people. The problem is that in Roe the Court relied on the 14th Amendment's due process clause. It was not the first time the due process clause was used in this way, of course, and stare decisis is probably enough to justify its use in Roe.

(I do tend to share Bork's view that, at least on the surface, Lochner, Griswold, and Roe all look pretty similar. But I bet I know which of the rulings in those cases Ron Paul would not reject. Hint: it's the one that has to do with regulating property, as opposed to regulating people's bodies.)

In any event, as a libertarian, I only have to value the Supreme Court, judicial review, and stare decisis instrumentally, to the extent they contribute to the freedom of individuals. Arguably, both do, in the same way rule of law more generally contributes to individual liberty. As far as I can tell, Ron Paul rejects each one of these things.

That's what it means to want to give the states all the power when it comes to regulating abortion. It means denying the importance of judicial review, of stare decisis, and of the importance of the Supreme Court as a means of protecting the rights of real, honest-to-goodness people.

Of course, it's literally true that the Constitution does not mention a specific "right to have an abortion." It doesn't mention a specific "right to walk and chew gum at the same time," either. But it does contain something called the 9th Amendment, which says that there may very well be lots of rights besides those specifically enumerated in the Bill of Rights. That's because the Founding Fathers, unlike Ron Paul and some of his supporters, understood that listing all of our "natural liberties" in one document would be impossible.

In Federalist 84, Hamilton could have been talking about Dr. Paul and his cabal when he suggested that a bill of rights could be dangerous. A bill of rights "would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted."

In other words, since the right to privacy is not literally in the document we all call the "Bill of Rights," it can't possibly be a right. This problem is very likely why Madison proposed the 9th and 10th Amendments in the first place.

Ron Paul seems to think that if the federal government does not have the power to regulate abortion, then state governments do have that power. But that's an idea the Constitution itself does not support (the 9th Amendment says rights not enumerated are retained by the people, not the states. The 10th Amendment says powers not delegated are reserved to the states or to the people.)

Let me put it this way: are there some things Ron Paul thinks neither the federal government nor state governments should be able to regulate? Does he think anything should be entirely left up to the individual to decide? If not, then he's no friend of liberty. And if he does, what's his basis for thinking so? After all, he seems to think that if a particular freedom is not mentioned in the Bill of Rights, then states should be able to restrict it on their whim.

And that makes individual liberty too fragile for my tastes. The Constitution is not a libertarian document, but it is also not a document that gives each state almost unlimited power over its citizens.