A return to constitutional normalcy

“My view is now that we have abortion where everybody wanted it from a legal standpoint. The states will determine by vote or legislation or perhaps both, and whatever they decide must be the law of the land. … Now it’s up to the states to do the right thing.”

Think what you want about Donald Trump’s rhetorical flipping and flopping on abortion. It can be argued that he is descriptively correct about the current situation. It is up to the states and, in a sense, rightly so. Arguably, it always should have been. As the 10th Amendment signals, originally conceived, states are the central moral loci of our republic, the primary sites of internal, domestic policy. (Indeed, even today, most crimes like murder, rape, and theft are state-level offenses.)

Abolitionists may bemoan Dobbs because it did not include an outright 14th Amendment ban on abortion. Of course, they are right that equal protection should apply to unborn children. All of us would have rejoiced at such an outcome. Had such an option been available, it would not have been right to reject it based on procedural or jurisdictional principle.

But this is where we are, and there is more than a silver lining to it. Trump, perhaps in spite of himself, highlights what should be understood as a return to constitutional normalcy, our original federalist model, and presents a path forward. There is cause for optimism. We are already seeing it materialize.

Last Tuesday, the Arizona Supreme Court upheld an 1864 law—dormant under Roe—that bans nearly all abortions, with no exceptions for rape or incest. “Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal ... and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation,” said the Court in a 4-2 decision with one recusal. “Because the federal constitutional right to abortion that overrode §13-3603 no longer exists, the statute is now enforceable.”

After the state Supreme Court upheld the statute, state House Democrats tried to throw out the law. Just last Wednesday, Arizona House Republicans halted another attempt from the Democrats to overturn the state’s statute. The 2022 15-week ban is still in place as lower court litigation continues, but Arizona is now positioned to join the 14 others states that have enacted abortion bans.

There is a reason U.S. Supreme Court Justice Samuel Alito cited state statutes at length in his Dobbs majority opinion. He not only provided a roadmap to abortion abolition, he also, by sheer historical weight, identified the proper forum for laws touching morality and health in our federated republic—a compound not consolidated one. The bargain struck in our constitutional ratification debates was that states would inevitably feature a diversity of practices. The great fear, as Phillip Munoz has shown, was that the new Constitution would usher in centralization and uniformity that would erode local autonomy and tradition. The anti-federalist James Winthrop represented this sentiment when he said, “it is impossible for any single legislature so fully to comprehend the circumstances of the different parts of a very extensive dominion.” This was simply a matter of fact, not principle.

This is not to suggest that diversity on abortion is good in itself or that it is morally acceptable that some states will openly and sinfully defy God and His moral law. Concessions are almost always lamentable. Rather, it is a judgment of political realism, the art of the possible, of the kind the founding generation understood when they were wrestling over analogous moral questions.

In other words, we should stop paying inordinate attention to what is happening, or being said, at the federal level. Look to your state. Centralization and uniformity are conducive to the aims of progressives, not conservatives. The pro-abortion left will continue to press national legislation; conservatives should counter by demanding state-level solutions, where we can win. As Andrew Walker advised, do what you can, when you can.

Overemphasis on sweeping federal policy on moral issues is part of what got us into this mess. Appeals to due process or equal protection or “fundamental rights” in the 14th Amendment may hamstring the ability of states to pass or maintain legislation we want on various fronts, from family formation, to education, to abortion. And such appeals perpetuate the notion of national uniformity, something never intended.

Again, it would be a welcome blessing if our nation simply eradicated abortion wholesale, from top to bottom. Our rights come from the creator God, after all. But that is, at present, not in the cards. Do not let the perfect become the enemy of the good. Rulings like the one in Arizona will be combatted, to be sure, but in the long run, as with the immigration crisis in Texas, the post-Dobbs state of play may act as a catalyst for reorienting our constitutional order to proper function, a return to normalcy in this sense.

Therein we enjoy a significant amount of leeway to dictate internal policy pertaining to health, safety, and morals, as well as crime. This is the way our polity was designed. Now, it’s up to us to do the right thing.