Roe v. Wade: A Jurisdictional Approach

Where I’m coming from

There was recently an argument around the Republican presidential candidates and their position on abortion and Roe v. Wade. After seeing the arguments going around, I thought it was time someone stepped in with some levity. I’m not writing this as a Ron Paul advocate. I think he has genuine flaws as a candidate and as a thinker.

But I also think his position on Roe v. Wade is the only coherent one in the field, and I think the reason almost nobody recognizes that (including many of his own supporters) is that everybody in this debate is talking about completely different things and thinks everyone else is talking about the same thing just because they’re using the same words and phrases.

So let’s start at the root.

The actual issue: jurisdiction

Ron Paul’s position on Roe v. Wade is not primarily a position about abortion. It’s a position about jurisdiction. Before you can have a coherent conversation about what his view means for women’s rights or fetal rights, you have to clear up what the decision actually did and whether the federal government had any business doing it.

The United States was founded on a set of governing principles that separated authority across different levels of government and defined what was the responsibility of each. There are a handful of issues that can and should be handled at a national level. The rest are better handled more locally — some at the state level, some at the county level, some at the city or community level. The Constitution lays out what falls under federal jurisdiction, and by default, everything outside of that falls to the states. Each state then has its own constitution that defines what it handles versus what it leaves to more local authority.

This separation isn’t arbitrary. The founders understood that some issues require a case-by-case approach, and the more case-by-case an issue is, the more local the decision-making should be. Blanket national law is a poor instrument for complex, situation-dependent questions.

What Roe v. Wade actually did

Prior to Roe v. Wade, some states allowed abortion, some outlawed it, and most had more nuanced structures that addressed specific circumstances on a case-by-case basis. That variation existed precisely because the issue is complicated and because reasonable people recognized that there are circumstances where the calculus shifts. The pre-Roe landscape wasn’t a failure of governance — it was governance functioning as designed on an issue that genuinely requires local calibration.

Roe v. Wade didn’t interpret an existing federal law. It created one. That’s not what the judicial branch exists to do. The government was divided into three branches for a reason: one to create laws, one to enforce them, one to interpret them. Roe v. Wade is one of the clearest examples of a branch exceeding its defined role — not the system failing, but the system being abused.

Repealing Roe v. Wade doesn’t make abortion illegal. It returns the question to the states, where it belongs under the constitutional framework. And practically speaking: most states allow abortion. If Roe were repealed today, only one or two states have laws on the books that would prohibit it. For the vast majority of Americans, nothing would change except that the decision would be made at a level of government more responsive to the people it governs.

On the rights argument

The counterargument typically raised is that the federal government has to be involved because abortion is a rights issue, and rights can’t be left to states — citing slavery, voting rights, and gay rights as parallel examples.

[ A note — stepping outside the argument ]

Slavery isn’t wrong nor illegal even in this country — it is conditional. Slavery can be used as a punishment for a crime or as a payment for services. The right to vote is only worth what you feel it is; I’d give up my right to vote in a heartbeat. I want nothing to do with a government and I want them to have nothing to do with me. Leave me alone and I’ll leave you alone.

Gay rights is the only example here that holds any weight — but it isn’t analogous with abortion rights. Having a same-sex partner harms no one else. Having an abortion, at the very least arguably harms another person, and at the most definitely harms another person.

[ End aside ]

That last distinction is exactly why abortion belongs in the same category as murder, theft, rape, and other acts that are criminal precisely because they may harm another person or their property. And yet all of those are states issues. Each state and locality determines what constitutes murder versus manslaughter versus homicide versus accidental death. Each handles theft and property destruction and rape with its own statutes. These are serious, arguably clear moral issues — and they’re dealt with locally, not federally, because they are complex and case-dependent and shouldn’t be governed by a blanket law that can’t handle exceptions or unusual circumstances.

Abortion, if it is a crime, belongs in that category. If it isn’t a crime, it belongs in the domain of personal liberty — which is also a states question. Either way, it’s not a federal question.

Let me be clear about what this means

Paul’s position here is the only sane one among the candidates as he recognizes the issue for what it is and not for what it isn’t (a divisive political issue used to score points with the masses who don’t have a clue what the real issue is and yet divides the populace every 4 years into a warring mass of ignorance).

In other words, if you want abortion to be legal you should be in favor of a repeal of Roe v. Wade and if you want abortion to be outlawed you should be in favor of a repeal of Roe v. Wade, but mostly if you’re in favor of a sane and realistic approach to dealing with the issues of a woman’s rights and body and the rights and health of a child — and a consistent approach to laws and government — then you should be in favor of a repeal of Roe v. Wade.

A final note

Now, if you want to discuss the other aspects of abortion (A woman’s right? Murder? Something else? Should be legalized, outlawed, etc???), then you can take those issues on individually. (Further, none of this has anything to do with religion…).

As for Ron Paul’s flaws, repealing Roe v. Wade isn’t one of them… (and I personally find it humorous that those on the left tend to dislike Paul for his position on abortion because they misunderstand it as being anti-choice, and those on the right tend to dislike Paul for his position on abortion because they misunderstand it as being anti-life; which would indicate to me that’s it’s probably about right where it should be.)