04/27/23

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, OR to the people.” —Tenth Amendment of the U.S. Constitution (bold face and capital letters added by this columnist for emphasis).

That little word “or” is a very big word for Republican leaders these days. It has to do with how the GOP deals with abortion.

Last June the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that a 2018 Mississippi law banning most abortions after 15 weeks was constitutional. The court thereby overturned the landmark 1973 Roe v. Wade decision that asserted a federal constitutional right to abortion.

The ruling in effect implies that a state can make its own decision on whether abortions are legal within its boundaries. The Dobbs decision affects only Mississippi, leaving U.S. Supreme Court rulings on abortion laws in other states to be clarified later.

But regardless of whether and how the Supreme Court might rule on other states’ abortion laws, the Dobbs decision establishes that abortion is no longer a national right: it’s now up to individual states to answer that question for themselves.

And that standard doesn’t go far enough for some Republican anti-abortion voices. I’ll call them “pure” right-to-lifers. 

Last September, after the Supreme Court handed down the Dobbs decision, U.S. Senator Lindsey Graham (R-South Carolina) proposed a national ban on abortion after 15 weeks’ gestation. His proposal allowed exceptions for rape, incest, and the health of the mother. But it still would extend Mississippi’s principal of abortion restriction to the entire United States. 

Graham two months earlier, in July, had advocated instead that individual states should make that decision for themselves. Nearly all Republican opponents of abortion had agreed with that earlier position before the Dobbs decision was handed down: abortion should be decided at the state level.

But now, with the right to abortion no longer protected by the U.S. Constitution, pure right-to-lifers want more. What was good for Mississippi, they propose, should be the law across the board in the United States.

(In 2019, a year after Mississippi enacted its 15-week abortion ban, its legislature even further restricted abortions after six weeks of gestation. That later law is now in effect in Mississippi.)

Former Vice President and likely presidential candidate Mike Pence, at a Republican forum in Iowa last week, proclaimed his support for a national abortion ban. He used that position to counter former President Donald Trump, who in his candidacy to repeat as Republican presidential nominee in 2024 has called for the decision to be left up to the states. 

Pence argues that Congress represents “the people.” Trump emphasizes the power of “the states.” Therein lies the ambiguity of the Tenth Amendment.

The difference between Pence and Trump on abortion has drawn the sharpest battle lines yet in the potential race between those two for the GOP nomination, and can be expected as a marker among the other Republican candidates in the race.

The question for the Republican Party is this: if states have the power to rule for themselves on issues regarding abortion, what about a state where its legislature, or its own Supreme Court, or its constitution, or a referendum, provides for legal abortion? Those in the GOP who applauded the Dobbs ruling this year now have to decide between the consistency of states’ rights on the one hand and the desire to protect the unborn across the nation.

The various states are literally all over the map. The Iowa Legislature has enacted a six-week limit for abortions, as have a number of other states. (The Iowa Supreme Court is expected to rule on our state’s six-week law by late June.) Some states that now outlaw abortion permit exceptions for rape, incest, and the life or health of the mother. Others are much more restrictive.

Yet other states, generally those in the “blue” political category, have taken steps to enshrine the right to abortion in their own constitutions, or their state courts have declared that right already to exist. In others, public referendums on the question have established abortion to be legal within their state lines.

Other issues abound. Should states have the power to disallow pregnant women to travel outside their own state to procure an abortion? What about the medical abortion drug mifepristone – should it legally be accessible through the mail, or indeed to be used at all?

One of the problems faced continually by political parties is that the process of selecting their leaders tends to skew toward the more extreme candidates, who then earn rejection by the majority of the voters. Some Republican leaders—I’ll call them “political” right-to-lifers as opposed to the “pure” variety— fear rejection of their nominees who advocate severe abortion restrictions when the general election rolls around. 

Political right-to-lifers would prefer to leave abortion up to the individual states. Pure right-to-lifers are determined to restrict abortions nationwide. Whether Congress could pass a “hybrid” law that generally bans abortion after 15 weeks across the nation, allows individual states to go even further with restrictions, but forbids other states to guarantee their own citizens the right to abortion is highly doubtful, let alone how the U.S. Supreme Court could declare such a maze to be legal. 

But politics in America, to channel the Siamese ruler in the musical “The King and I,” is “a puzzlement.” No one today can predict how this particular puzzlement will play out. Stay tuned.