by J. Pharoah Doss, For New Pittsburgh Courier
In May, Politico published a leaked draft of a Supreme Court opinion that would overturn the abortion rights decision – Roe v. Wade (1973). The leaked draft indicated there was no federal right to abortion, and each state had to make its own law regarding the procedure. After hearing the news, conservative commentator Glenn Beck said the Supreme Court was reverting the nation back toward federalism – and that’s a good thing.
We all know the Tenth Amendment established federalism by granting each state powers that were not given to the federal government by the Constitution. Yet many aren’t familiar with the theory of federalism commentators like Beck take for granted.
That theory views each state as a laboratory.
In the world of industry, products are tested for defects before they’re made available. Whereas in the legislative world, there is no laboratory to test laws for unintended harm before they’re made public. If a law is defective, the public suffers until the law is replaced. This process continues until the legislators develop a law that achieves the desired outcome with the least amount of undesired harm to the public.
The laboratory theory suggests it’s better for the experimental process of trial and error to take place at the state level than at the federal level. This way more laws are tried and tested, but at the same time, the consequences don’t extend beyond the borders of the state.
From this perspective, the reversal of Roe v. Wade was a victory for federalism, but is that an achievement in itself? A better question might be: Is federalism a fundamental constitutional value that the Supreme Court must give first priority?
Political scientist Richard A. Brisbin Jr. explained federalism is not a fundamental constitutional value, it’s simply a legal mechanism that prevents all powers from accumulating in one set of hands. More importantly, federalism is not a device that puts the states and Washington in an adversarial relationship.
However, many have misconstrued federalism through an inverted hierarchy of state rights over federal authority. Advocates for reproductive rights have feared this adversarial misinterpretation of federalism for decades.
In 1989, Harvard Law professors, Susan R. Estrich and Kathleen M. Sullivan sounded the alarm when they insisted the political process was not to be trusted. The professors stated the very essence of a fundamental right is that it doesn’t depend on the outcome of an election. Therefore, the right to an abortion is not an occasion for the experimentation that federalism invites.
The professors also said the direct impact of abortion restrictions falls exclusively on women. Yet, every restrictive abortion law has been passed by a legislature in which men are the majority. Plus, every restrictive abortion law, by definition, contains an unwritten clause exempting all men from its hindrance. Legislators threaten liberty when they pass laws that exempt themselves. There is no more effective guarantee against—arbitrary and unreasonable—government than to require that the principle of law that officials impose upon a minority must be imposed generally. The Supreme Court has long interpreted the equal protection clause to require even-handedness in legislation, or the powerful few will take away key liberties from others.
Conservative commentators like Beck viewed the reversal of Roe v. Wade as a victory for federalism, but several Republican-controlled state legislators misconstrued it as a license to ban abortion with few exceptions.
These Republican-controlled legislators justified decade-long fears of federalism by using their laboratories for theology instead of theory.
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