considering the leaked Dobbs decision and competitive federalism
Greetings from the University of New Hampshire! I taught my last class for Spring of ‘22 on Thursday - now we move on to finals and into the summer! Even though I am literally following a week by week, the end always seems to creep up on me and pounce unexpectedly. It leaves me a little stunned and numb. Of course I have a pile of papers and grading to do before I am actually done, and I have to get my summer classes’ syllabi in order, so it’s not like I can kick back yet - but we’re getting close!
For those of you who are mothers, or have or had a mother, I wish you a Happy Mother’s Day!
So for a slightly uncomfortable transition from that, this week we were treated to a leaked draft of the Supreme Court’s decision in Dobbs v. Jackson. This draft opinion proposes overturning Roe v Wade, the 1973 court decision that ruled
A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception.
(That’s a summary of the case - not the case language itself, to be clear.)
I am generally pro-choice within limits. This is the position held by most Americans, and it is consistent with Roe. My personal belief is women should be allowed to abort their pregnancy in early stages at will, but later stages only under medical necessity. I just say that because I want to talk a bit about what this ruling in the context of law and legislation, and I find I am generally in concurrence with the draft ruling, despite the fact that I support abortion rights within certain parameters. I haven’t read all of the draft yet, but I plan to. So what I say here is provisional. And of course, if the final is different from the draft, I may disagree. I will say, if presented with the opportunity to vote explicitly for or against abortion rights, I will vote for them. I will write to my representatives in favor of them if Roe is in fact overturned. If this seems to be a contradiction, I invite you to read on. Hopefully I can convince you of my consistency.
So, I studied constitutional political economy while I was in my PHD studies and was particularly interested in policy around prison - and in particular the 8th Amendment. I was surprised and pleased to realize I could easily download Supreme Court decisions on the topic from the internet and I read many of them. While they aren’t exactly page-turners, they are comprehensible to the educated lay person. I find both of these facts - their availability and their legibility - remarkable facts about our legal system. (Imagine trying to get major legal decisions out of the Chinese Communist Party.) Democracies must operate with a high degree of transparency, and the fact that we can listen to the arguments, and read the conclusions of the justices is rather remarkable when you consider the broad sweep of human history. So given the availability of court decisions, it irks me when people don’t actually read the documents when a controversial decision is made, but instead rely on partisan interpretations of the decisions - probably written by people who didn’t read the documents either. So since I want you, dear readers, to be more informed, I am clipping a couple of crucial paragraphs from the draft for you to actually read, and then I want to talk a bit about my understanding of law:
We hold that Roe and Casey must be overruled, The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's his- tory and tradition" and "implicit in the concept of ordered liberty." Washington v. Glucksberg, 521 U. S. 102, 721 (1997).
The right to abortion does not fall within this category until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protection of "Liberty."
Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called "fetal life" and what the law now before us describes as an “un-born human being."
Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe's abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. "The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. Casey, 505 U. S., at 979 (Scalia, J., concurring in the judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.
(Note: there may be some typos here - I used OCR to capture the quote)
Basically Justice Alito argues there is no constitutional basis for the Roe decision, or the less talked about, but almost as important follow-on Casey decision that revised much of Roe and forms the current basis for abortion law. However, that does not mean that we cannot have legislation that makes abortion legal or illegal. What Alito is asserting is that the Constitution, a specific form of legislation, does not provide specific guidance on abortion. The Constitution doesn’t provide specific guidance on most things in American life, nor should it. Constitutions should be broad in nature, the legal kin to operating systems. Windows 11 (or whatever you are running) allows for many different programs to run on top of it. The operating system (OS) provides broad parameters for what programs can and cannot do, but the OS does not help you write your term papers or balance your checkbook - you need programs for that. In a similar manner, the Constitution is silent on things like professional licensing of doctors, reporting requirements for publicly traded securities, and even which side of the road we should drive on. It’s not that these things aren’t important - some of them are a matter of life or death - but rather what level of government they should be decided at.
If we grant that there isn’t an explicit constitutional basis for a right to an abortion, then the decision should go back to the legislative process as Alito says: “It is time to heed the Constitution and return the issue of abortion to the people's elected representatives”. This becomes another interesting question: if Roe/Casey are overturned because a right to an abortion does not have a legal basis in the constitution, is this a federal- or state-level issue? The United States was designed deliberately using competitive federalism, which features overlapping policy jurisdictions. Here’s a graphic I used to explain this in my Health Systems class this semester:
Under the United States Constitution, we have a system of overlapping levels of jurisdiction. At the most macro level, we have the Federal government, which acts as an umbrella jurisdiction over all other levels, but most specifically the states. However, the states are not just departments of the Federal government - they are independent jurisdictions with rights to develop policy separate from the Federal government. While the Federal government has oversight of all the territory of the United States, it has limited authority within any of the states. Article 1, Section 8 of the Constitution outlines the enumerated powers of Congress. And just to be super clear, the Founders added the 10th Amendment to the Constitution that says, “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.” Under this system, most regulation is supposed to happen at the state level. Even within the states, we have overlapping jurisdictions with states butting up against the policy privileges of counties and towns. It is in this way that the Founders imagined that we would prevent the rise of tyranny. When you look at the inefficiency of government in the US, and understand why such a system would be designed, you come to see inefficiency as a feature, not a bug.
So how has the Federal Government become such a bloated behemoth? It is by a seemingly ever-expanding interpretation of the Commerce clause (one of the 18 rights of Congress) that reads: the United States Congress shall have power "[to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Even that is pretty limited. However, since the end of the Lochner Era and the dominance of Progressivism (especially the New Deal), we have seen a reinterpretation of the Constitution to allow the Federal government far more legislative freedom than I believe an originalist interpretation of the Constitution would allow. When I read the Commerce Clause and the 10th Amendment, and then I think of all the ways that the Federal government intervenes in our lives on a daily basis, it really baffles me. I believe the degree that the Federal government gets so involved in micro-level policy is through a (mis-)interpretation of the Commerce clause, and it is through this interstate trade clause that the Federal government claims most of its policy powers, and so regulating abortion would have to be one of those.
Congress could try to claim jurisdiction over abortion rights in the same way it has claimed jurisdiction over far more things than I think it should be able to based on the Commerce Clause. My opinion is that a whether a woman has a right to seek an abortion or not has nothing to do with interstate trade, and therefore should be a state-level decision if it is not covered by the 14th Amendment, as was held in Roe. Medical licensing (doctors, nurses, physical therapists, etc, etc) is done at the state level, so I don’t see why this would be different. I think most likely this is the way the decision will force legislation, but mostly because I don’t think Congress is going to want to seriously approach this issue. I think they will want to posture and yell (and tweet), but I don’t think they will do anything substantive. In the end, it will be the states that make the laws that govern abortion. And in fact, this is how our system is designed to operate: some states will make it hard or impossible to get abortions; some will make it quite easy. This is competitive federalism - the competition between the states to come up with policy packages that voters want so that they can attract new voters to move to their state, and keep the existing voters happy. States like Texas (Austin), North Carolina (Charlotte), and Tennessee (Nashville) have been booming in the last decade with migrants from places like California and New York by offering better policy packages - low taxes, less regulation - and less other stupid stuff in general. But those states are also likely to seek stringent abortion laws - at least current politicians have postured that way while it was impossible to get them while Roe and Casey stood. I wonder if they will continue to attract educated talent (that tends to be pro-choice) if they indulge their preferences and pass such limiting laws. Regardless, I think abortion will be regulated at the state level going forward, and that will force politicians in the states to be more serious about the laws they pass. In the past, red states have been able to pass stringent abortion laws as a means of pandering to their conservative base with the understanding that the laws would ultimately be struck down by the Supreme Court (or sooner) and would never go into effect - so they could pass anything and it didn’t matter. Now if a red state passes a stringent abortion law, it might actually go into effect, and politicians will have to pay an electoral price when newspapers start publishing harrowing stories of girls using coat hangers again.
So I think the Dobbs decision could cause a resurgence of competitive federalism, which would be a good outcome from what I consider a bad circumstance. The second point I thought was worth noting from the Dobbs decision is Alito’s quote regarding due process - that a right from due-process right must be "deeply rooted in this Nation's his- tory and tradition". This goes to a deeper problem in recent decades. We have such high levels of polarization that there are deeply rooted beliefs on both sides of many issues, abortion being one. This is a problem for judge-made law.
In our system of governance, we have three sources for law: the legislature (at the Federal level, the Congress), the executive (at the Federal level, the Agencies that report to the president), and the judiciary (the Federal judiciary, capped by the Supreme Court). The fact that Congress makes laws should not be a surprise. But the Executive makes policy that implements the details of the laws made by Congress, and in fact has more direct effect than most of the laws made by through legislation because most laws are general and direct the Secretary of X Agency to develop a specific policy, and the Secretary has significant lee-way in defining what the law actually says. These policy interpretations then carry the force of law. The third way law is made is through the judiciary. In our Common Law system, this is the predominant way law is actually made.
In the Common Law tradition, when an explicit law created by the legislature is not available, judges look to precedent and tradition and culture to decide what the law is. We might call this Law, as opposed to law because Law, when drawn out of culture and tradition, will be more deeply felt by members of society than a law handed down by politicians. Some legal scholars I have read refer to this dichotomy as law vs. legislation - where law is drawn from culture and tradition, and legislation is man-made.
The area where Law and legislation (law) overlap is the area where man-made law is in line with the cultural norms and traditions of society. This would include laws against murder, theft, incest, etc. Violations of these taboos are both culturally censured and often punished by the state, thus they reside in the overlap between Law and legislation. The state also has many rules that carry the force of law but are not Laws. A simple example is driving on the right side of the road. We have to have a law about which side of the road we need to drive on because we need to be able to coordinate for safety and efficiency. But there is no deep, cultural understanding that driving on the right side of the road meets. Which side of the road we drive on is legislation, but it is not Law. It would be hard to get everyone to change at this point, but no one would make a moral argument about which side of the road we should drive on. Law is all culturally-based, arising from tradition, and steeped in morality. Law may not also be endorsed by the state in legislation - and sometimes this is where minorities run into trouble with the state - because their traditions vary from the majority and the majority’s legislation may prohibit or require things of the minority that violate their Law - outlawing the wearing of headscarves by the French government, for example. Judge-made law works best in the Legislation side where there is cultural indifference, or in the middle, where there is cultural and legislative congruence, and the judge-made law is just a matter of fine-tuning the law. But when judge-made law ventures into making rules on the Law side there are problems, at least if the judge is a secular judge representing the state, and not, for example, a religious judge (e.g., a rabbi or priest).
The problem of abortion is that allowing it violates one group’s sense of Law in the US, and prohibiting it violates another group’s. The validity of judge-made law, like any law, relies on the acquiescence of the people. When the point is contentious, with near-equal opposition on either side, judge-made law is unlikely to be stable. And this is the point Alito was making in the Dobbs ruling in referring it back to the people. Without a national consensus on abortion, it should be settled at the state level, state by state, with individuals in each state “trying to persuade one another and then voting”. Devolving the legality of abortion to the states is more likely to get a Law-legislation congruence than by forcing a particular interpretation from the center. I have written before that I think Congress has abdicated its responsibility for making substantive policy and punted it to the executive or judiciary too much. In the case of abortion, I think it should be decided at the state level, where states can take responsibility for their policies, and where legislation can better reflect the unique cultures of each state.
As I already said, I think states that impose harsh abortion laws will pay a significant economic price. The surest way for individuals to stay poor is to have children before marriage.The economic impact on a young woman having a child before marriage is significant for the woman and the child (it should be on the man as well, but let’s stay with the world as it is, not as it should be). States that disallow abortion will have more poor women and children who are not able to accumulate the human capital necessary to compete in a modern economy. This will create a drag on the state’s economy. Furthermore, individuals who value human capital development will most likely choose to raise their families in states that have policies friendly to human capital development - including elective abortion. Thus, a choice to outlaw abortion once the states have the prerogative to do so, will likely be harmful to states that choose to do so.
OK - very long diatribe. If you read this far, I appreciate your bearing with me and letting me think through this. I invite you comments.
A sad topic to discuss the day before Mother’s Day, but for the Mother’s out there, a happiest day to you!
A few links related below.
What: Politico, Supreme Court has voted to overturn abortion rights, draft opinion shows
Why: Politico’s breaking story about the Dobb’s leak.
What: Justice Alito, initial draft, Dobbs v. Jackson
Why: This is the draft. I linked to it in my commentary above, but here it is again in case you skipped all of my delightful analysis.
What: Five Thirty Eight, Where Americans Stand On Abortion, In 5 Charts
Why: Most Americans support legal abortion, within limits. See how abortion utilization has changed over time.
What: Abortreport.eu, EUROPEAN DATA
Why: This site aggregates information about abortion in the European Union. Scroll down about half way and there is a graphic that shows that most European countries have more restrictive laws than the US does right now, which I find interesting because I would expect EU countries to be more permissive.
(I saw this chart referenced in Common Sense.)
What: Juston Mckinney, New Hampshire: Live Free or Die!
Why: I use this video to introduce the idea of competitive federalism - the idea I discussed above - that the states compete with each other for residents and business by offering different packages of policies (e.g., is abortion allowed?). This is super funny and you should definitely watch it. Especially if you are from New England.
What: The Dispatch Podcast, Supreme Court, Abortion, and the Political Fallout (37 minutes)
Why: The Dispatch is one of my favorite political commentary podcasts. They are center-right in orientation. This is a very good analysis of the likely political fall-out of the Dobbs decision.
Thanks for reading and see you next week! If you come across any interesting stories, won't you send them my way? I'd love to hear what you think of these suggestions, and I'd love to get suggestions from you. Feel free to drop me a line at firstname.lastname@example.org , or you can tweet to me at @mbonica .
If you’re looking for a searchable archive, you can see my draft folder here: https://drive.google.com/drive/folders/1jwGLdjsb1WKtgH_2C-_3VvrYCtqLplFO?usp=sharing
Finally, if you find these links interesting, won’t you tell a friend? They can subscribe here: https://markbonica.substack.com/welcome
See you next week!
Mark J. Bonica, Ph.D., MBA, MS
Department of Health Management and Policy
University of New Hampshire
Health Leader Forge Podcast:
“The meaning of life is to find your gift. The purpose of life is to give it away.” – Pablo Picaso