Donald Trump last week said he opposes any national legislation on abortion, and said he supports state governments adopting their own policies. According to USA Today: "Former President Donald Trump said individual states should choose their own abortion restrictions, avoiding talk of any kind of federal government ban and drawing criticism from Democrats and anti-abortion Republicans alike on a pivotal election issue. ...At the end of the day, this is all about the will of the people."
Democrats naturally condemned these remarks, insisting that the only acceptable position is support for nationwide policy mandating the legality of abortion everywhere. Trump, however, also met opposition from some Republicans who continue to cling to the (clearly unrealistic) idea that a national abortion ban can somehow be forced through Congress.
Chief among these opponents is Senator Lindsey Graham of South Carolina who claims "It's a state's issue up to a point." Graham, however, gives no indication as to where this "point" is. historically, of course, abortion was 100% a state and local issue, and it was not until an activist Supreme Court imposed federal policy on all states that it became anything other than a state issue.
At the time just prior to Roe v. Wade in 1973, however, the United States was a patchwork of state laws on abortion, with abortion legal on demand—then as now—in the two most populous states, California and New York.
Moreover, throughout much of the nineteenth century, the legality of abortion varied, as did the enthusiasm with which anti-abortion laws were enforced.
[Read More: Before Roe v. Wade, Abortion Had Always Been a State and Local Matter by Ryan McMaken]
By the late nineteenth century, there were plenty of anti-abortion activists, but few suggested that abortion was a matter for federal policy. Indeed, the closest the nation got to nationwide abortion policy was federal law—beginning in 1872—that restricted the use of US postal service for materials designed for "preventing conception or producing abortion."
There certainly were anti-abortion activists at that time, yet only a tiny minority thought it constitutional for the federal government to regulate abortion in the states.
This general concern over the constitutionality of abortion laws was well founded. Obviously, the matter of abortion is not to be found among the enumerated powers in the US constitution, and the Tenth Amendment therefore clearly reserves the matter to state and local governments.
Lindsey Graham would have us believe, however, that abortion is federal policy simply because Lindsey Graham thinks abortion is an important topic. In the nineteenth century, Americans read the text of the US constitution and came to the common-sense conclusion: abortion is not a matter for Congress or the federal courts. Those Americans, however, perhaps lacked Lindsey Graham's gift for simply making stuff up.
Not content with being wrong about the history of decentralized abortion policy, Graham took things a step further and clumsily compared Trump's decentralist approach on abortion to the infamous Dred Scott decision. According to Graham: "The states’ rights only rationale today runs contrary to an American consensus that would limit late-term abortions and will age about as well as the Dred Scott decision."
In response to this "observation" by Graham, we can make two points. The first is that if there is truly a "consensus" on late term abortions, then it should be easy to win passage of late-term abortion bans through every state legislature. The fact that this has not proven so easy shows that no such consensus exists.
Secondly, attempting to associate Trump's position with the Dred Scott position is a clear attempt to associate Trump's position with what is widely regarded as one of the worst and most inhumane Supreme Court decisions in American history.
Graham is wildly off base by drawing any sort of connection here, however. The Dred Scott ruling was not a decision that favored decentralized state-level policy. Rather, the Dred Scott decision is better compared to Roe V. Wade which centralized policy and reduced state and local sovereignty. Similarly, the Dred Scott ruling prohibited the state governments from extending state citizenship or legal protections of any kind to blacks which effectively granted a "right" to own slaves everywhere in the country without the possibility of any legal challenge by the slave. Roe v. Wade did something similar. We can see this in how the pro-abortion argument is essentially that an unborn child is the de facto property of the mother, and that she ought to have a right to do kill the child in any and every state of the union. In modern times, the preferred pro-abortion policy is thus to disallow any state and local limitation on this "property right." This puts unborn babies at the mercy of abortionists in every jurisdiction in a way similar to how Dred Scott ensured slaves remained at the mercy of slaveowners nationwide.
Graham has no respectable foundation on which to base either his proposed policies or his rhetoric. He is wrong that abortion is a federal matter, and he is wrong in his attempt to associate Trumps' decentralist proposal with the Dred Scott decision of old.
Moreover, we should not be surprised in the slightest that Graham has no respect for local sovereignty or any recognition of the fact that men in Washington do not actually have a right to dictate the morals and policies of people everywhere else. Graham's career has long been characterized by a thirst for brutally violent interventionist foreign policy in which he was long supported violence and war crimes against foreign countries that do not take orders from Washington and which foster cultures and policies of which Graham does not approve. Graham's habit, by the way, of supporting military campaigns that kill large numbers of women and children belie his claims of deep concern for the welfare of the unborn. Naturally, we should expect Graham's moral imperialism to extend to every corner of the United States as well.
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