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.

Ron Paul vs. James Madison

It's been my experience that libertarian supporters of Ron Paul assume something like the following: weakening the power of the federal government and expanding the (potential) power of the state governments will (in fact) increase individual liberty.

I take it that this statement, or something very much like it, is at the heart of the libertarian's support for Ron Paul. Let us call it the devolution thesis, since its subject is the devolution of power from one level of government to another, lower level of government.

The devolution thesis can be understood in at least two ways. First, it can be understood as a thesis about democratic efficiency. For example, some people may think they have greater chance for representation at the state level than at the federal level. So a state legislature will produce their will more readily than a federal legislature. In other words, if I want X, a state legislature will likely give me X more reliably than a federal legislature, where X is some policy.

I think this is a mistaken, overly democratic picture of political power, one most libertarians would reject. Unlike democrats, libertarians do not think that the freedom to make public policy -- basically the freedom to tell other people what to do -- is an extremely valuable kind of liberty, and certainly not intrinsically valuable. As such, let's move on to the second way the devolution thesis can be understood.

The devolution thesis can also be understood as a thesis about government inefficiency. The argument goes like this: the federal government wields a bigger stick than any particular state government. Thus, the fed can do more to restrict personal freedom than any single state could ever hope to do. For example, since it controls the military, the federal government can seal the borders and not let anyone out of the country. In contrast, if a state like South Carolina restricts liberty in an objectionable way, its citizens can always move to some other state.

Now the interesting thing is that in Federalist 10, James Madison clearly sees that state governments have the potential to be very democratically efficient -- which is exactly why he thinks the federal government ought to have more power (i.e. than it did under the Articles of Confederation.) Madison, a genius, argued that because the federal government must encompass a wide variety of competing factions, it will be difficult for any one of those factions to gain control of the fed's admittedly big stick. To quote Madison:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.

Any single state will necessarily contain fewer factions, increasing the chances of one of those factions gaining control of that state's much smaller stick, and using it against the other factions in that state. Notice: the size of the stick doesn't matter that much. A big stick that can be used to restrict the liberty of a whole lot of people is not necessarily worse than a smaller stick that almost certainly will be used to restrict the liberty of a smaller group of people.

Especially not when we're not talking about one small stick, but fifty of them.

This article is a case in point. A pro-choice organization suggests that at least 30 states would ban abortion if Roe v. Wade were reversed. South Dakota is already on track to totally ban abortion. Even Ohio and Michigan, nominally blue states, would likely ban abortion, according to the organization's report. That's a hell of a lot of individual liberty lost. Without quoting wacky conspiracy theories about the fed's use of black helicopters, I would like someone to tell me how this almost certain loss of liberty can be justified.

Does Ron Paul want to overturn Roe v. Wade? He thinks it was "wrongly decided." Indeed, in the linked piece, he clearly espouses an interpretation of the devolution thesis akin to the first one I outlined, the one I think libertarians do and should reject. "Surely people on both sides of the abortion debate realize that it's far easier to influence government at the state and local level," he claims.

And he's probably right, too. From the perspective of individual liberty, that's exactly the problem.

This is not to say that the devolution thesis is always false, but it is not obviously true, either. I tend to think that, on the whole, the federal government has been a force for increasing the freedom of the individual. At least, this is so if you don't think income taxes are the sine quo non of restrictions on liberty.

[Edited to add a quotation from Madison, who was in fact a genius.]

Thoughts on Ron Paul, Abortion, and Federalism

Because of Ron Paul's relatively strong showing in the recent Iowa straw poll I find it necessary to make a few comments about Rep. Paul and explain why I do not whole-heartedly support his campaign.

I have a friend -- a die-hard libertarian -- who supports Ron Paul with an enthusiasm I cannot muster for any politician, Republican or Democrat. I'm sure he wonders why I haven't jumped on the Ron Paul bandwagon yet. My reluctance to support Dr. Paul can be explained fairly simply: I do not think his beliefs can be fully reconciled with my own libertarian position.

From my understanding, Dr. Paul believes that a) the right to life extends to pre-born human beings; b) federalism is the best way of protecting all of our rights.

As a libertarian, I hold the following belief: c) rights, if they are anything at all, must be understood as what Nozick called "side-constraints" on action. This means that one person's rights may not be traded away in order to protect some other person's rights. I reject a "utilitarianism of rights," as do many other libertarians.

These preliminary remarks should be enough to set up the dilemma. If the right to life extends to pre-born human beings, then the killing of such a being must count as murder. The only conclusion we can draw from Dr. Paul's legislative record is that he accepts this implication.

Suppose you are anti-abortion because you think abortion is murder. If the killing the pre-born is murder, then we cannot allow abortion law to be decided on a state-by-state basis. Murder is murder. If it's wrong in South Carolina, it must also be wrong in California.

Suppose, instead, you believe that pre-born human beings have no rights. Or that the rights of the pregnant woman trump the rights of the pre-born human she is carrying. Either way, if you believe that women have a right to abortion, then you must believe they have this right regardless of where they happen to live.

The pro-choice libertarians I know are comfortable with Dr. Paul's belief (a) because of his belief (b), federalism. They believe that abortion law should be decided on a state-by-state basis.

Dr. Paul, himself pro-life, believes that federalism is the best approach to securing the abolition of abortion. Pro-choice libertarians must believe that federalism is the best way of securing the rights of women to have abortions. Both have an end in mind they would like to achieve and think that federalism is the best way to achieve that end.

From my point of view, it doesn't matter who is right about this, because both approaches conflict with my belief (c), that rights are side-constraints.

Suppose we knew that through various sociological processes, killing a certain group of people would result, eventually, in fewer murders occurring. Indeed, suppose we knew that, in the end, we would prevent far more murders than we would have to commit or allow to be committed in order to reach that goal. We should still not allow those prior murders to be committed.

In other words, it is not appropriate to violate the right to life of some in order to prevent the violation of many more rights in the future. It is certainly not appropriate -- ever -- to allow such murders to proceed with the full sanction of the law, even the law of another state.

If abortion is murder, it must be treated as murder. Likewise, if banning abortion violates the fundamental rights of women, it must be treated as such. We cannot allow, or hope, that through the machinations of state legislatures fewer rights violations will eventually occur.

Libertarians I know tell me that, despite Ron Paul's belief (a), we should hope for his nomination because his many other beliefs are fully consistent with our libertarian views. But this is again to fall into a utilitarianism of rights. Abolishing the IRS will prevent the occurrence of many property rights violations. It will drastically limit the government's ability to control our lives. All true, perhaps, but I find myself unable to cheer if the rights of women are going to be traded away to achieve that end.
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We all know Ron Paul is not going to receive the nomination, no matter how many of us -- libertarians -- support him. Thus, support for Ron Paul is, at this time, a matter of personal expression, not a matter of changing the outcome of an election. Like much political activity, including voting, those who do it do so because the candidate projects views they hold themselves.

But precisely because support for Ron Paul is an expressive activity, the message such support sends must be clear and consistent with my own beliefs if the activity is to be successful. In this case, it is not. Despite the fact that I probably share many other beliefs with Dr. Paul, he is in the end a very bad reflection of my overall ideology.

It is no use and in bad faith to say, "I support Ron Paul, but I also support the rights of women to have abortions. And that's OK because he also believes in federalism. " Dr. Paul is counting on federalism, on state legislatures, to ban abortion, and violate the rights of women. He would like to amend the Constitution to prohibit abortion permanently In his own words, amending the Constitution to prohibit abortion is perfectly compatible with his version of federalism.

Legislatively, we should focus our efforts on building support to overturn Roe v. Wade. Ideally this would be done in a fashion that allows states to again ban or regulate abortion.

I suppose this is the part pro-choice libertarians focus on when they muster their enthusiasm for Dr. Paul. But here's what he says next:

The alternative is an outright federal ban on abortion, done properly via a constitutional amendment that does no violence to our way of government.

As far as I can tell, for Ron Paul, either alternative is consistent with federalism. But I can reconcile neither with my own understanding of libertarianism.

Rights are not chits to be exchanged one for another. Especially not the rights of others. One might as well say, in support of a candidate, "Well, he'd like to bring back slavery, but at least he'll certainly lower my taxes!" One should not say this even if one knows the candidate has no chance of winning an election, and no chance of ever bringing slavery back. It's the very idea that should be repulsive to anyone who loves liberty.