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Category: “federalism”

5 Myths About Roe v. Wade

[ 138 ] January 22, 2013 |

Roe v. Wade turns 40 today.  This seems like a good opportunity to address some of the false things that are routinely said about it:

  • Roe is unpopular.   This is a particular favorite of Ben Wittes, who has argued that Roe has undermined the popularity of abortion rights.   The main problem with this argument is that Roe has been and remains overwhelmingly popular:
  • Roe created the anti-choice movement.Longtime readers will know this is a hobbyhorse of mine, and I’ve written about it at great length.    The short version is that the idea that we would have arrived at the same place with less conflict had the Court not intervened is ahistorical nonsense.   Opposition to abortion had already stopped abortion legalization at the state level by 1971, and there’s no evidence for the claim that judicial opinions produce more backlash than policies announced by the other branches.
  • Overturning Roe would “return the issue to the states.” This  all-too-frequent assertion runs into one of the most enduring laws of American politics: “nobody actually cares about federalism.”  Show me a Republican congressman who advocates that Roe be overturned to “send the issue back to the states,” and I’ll show you someone who has not only voted for every federal abortion regulation to come down the pike but advocates a constitutional amendment that would make abortion first-degree murder in all 50 states.
  • Overturning Roe would be no big deal for abortion rights. Again, this is very wrong. The fact that national majorities support Roe certainly doesn’t mean that Republican majorities in a substantial number of states won’t recriminalize abortion if it is overruled.   Equally problematic is the argument you hear sometimes that overruling Roe would be OK because it would increase mobilization among pro-choice groups.   This argument runs into the same problem as arguments that it might be worth throwing the election to a Republican because this will generate more (ineffectual) opposition — pro-choice mobilization isn’t just an end in itself; it’s designed to, you know, secure public policy that protects the reproductive freedom of women.  The most sophisticated and highly motivated lobbying strategy by pro-choice groups won’t make a legislature dominated by reactionary Republicans pro-choice.  As I have argued elsewhere, the argument that overturning Roe would have some secret political advantages are “only compelling if the value of protecting a woman’s right to choose is accorded almost no weight.”
  • Roe is only a rich woman’s right. This critique from the left actually has a plausible basis and a limited amount of truth.   Since the Supreme Court has narrowly upheld the constitutionality of the Hyde Amendment and the regulations upheld by Casey disproportionately burden poor women,  the current legal regime protects abortion access for poor women much less than it should.   But even as diluted by Republican-dominated courts, Roe matters to poor women most of all. Affluent women, who will generally either have the connections to obtain gray market abortions or the resources to travel to a jurisdiction where abortion is legal, are likely to have reasonable access to abortion under any plausible legal regime.   To women who lack these advantages, Roe matters substantially, even though both courts and legislatures should be doing more to protect abortion access for poor women.  (Amanda has more on this general point.)

The Folly of Local Control In Federal Elections

[ 0 ] September 14, 2007 |

I have a new article up at TAP about how the collective action problems surrounding attempts to “reform” the distribution of California’s electoral votes to help the GOP is an outgrowth of the foolish (or at least anachronistic) decision to leave most of the standards for federal elections up to state legislatures:

The California case illustrates the central problem with America’s severely deficient electoral system: the fact that the administration of federal elections was largely left to the states. The Electoral College is an anachronism that distorts electoral outcomes (most recently, and with disastrous consequences for not only the country but the world, in 2000) and overrepresents small-state minorities that are already overrepresented throughout American political institutions. (As Yale law professor Akhil Reed Amar has pointed out, “the electoral college was designed to and did in fact advantage Southern white male propertied slaveholders in the antebellum era. And in election 2000, it again ended up working against women, blacks, and the poor, who voted overwhelmingly for Gore.”

But privileging “states’ rights” over people’s rights not only constitutes a primary problem with the Electoral College but makes it nearly impossible to change. It produces the kind of collective action problems we can see in the California case (the states that act first will disadvantage their state’s citizens) and gives small states a vested interest in maintaining the less democratic system. This is particularly irksome because, in a modern democracy, the decentralized administration of federal elections is “local control” fetishism at its least defensible.

The value of decentralized power in some contexts is that it can allow for experimentation and policies more attuned with local values. But such experimentation, while logical for a time period in which giving the franchise even to propertied white males was a fairly radical idea, could not be more inappropriate for a modern democracy. It should no longer be acceptable, of course, for states to “experiment” with which adults should get the franchise.

Much more over at TAP.