Decentralization: Iowa Law Offers Real "Choice" in Abortion Laws
This week, the governor of Iowa signed into law new restrictions on abortions in the state, prohibiting abortions in cases where a fetal heartbeat can be detected. This would make Iowa one of the most restrictive states in the Union in terms of abortions, prohibiting most abortions after six weeks into pregnancy.
Opponents of the law have already vowed to sue in federal court, claiming that the new law cannot be constitutional in light of Roe vs. Wade. They contend that the federal courts have guaranteed the legality of abortion (well beyond six weeks gestation) in every US state, and thus state-level efforts to restrict the practice must be invalidated by federal officials.
Prior to the Roe v Wade ruling in 1973, though, abortion was routinely regarded as a state and local issue in which there was no precedent for federal involvement.
Consequently, the availability of abortion varied from state to state, but given that US citizens could always travel and migrate freely from state to state, it was legally possible for any American to obtain an abortion in the United States.
This was especially beneficial to those who wanted abortions in an age when the federal government leaned in favor of restriction. Even when restrictionist views began to become more common at the federal level in the late 19th century, a decentralist bias against federal action prevailed at the time, and what federal legislation did exist on abortion matters — such as the Comstock laws — did little to actually limit access in the states.
This, of course, did not prevent state governments from legalizing abortion, or ignoring the issue altogether. As the Pew research center recounts:
In 1967, Colorado became the first state to greatly broaden the circumstances under which a woman could legally receive an abortion. By 1970, 11 additional states had made similar changes to their abortion laws and four other states — New York, Washington, Hawaii and Alaska — had completely decriminalized abortion during the early stages of pregnancy.
Given that a right of free travel from state to state was guaranteed to all legal US residents at this time, abortion thus became legally accessible to all Americans. Practical limitations remained, however, in the form of travel costs for those who lived in restrictionist states.
Although the decentralist position limited the power of anti-abortion advocates in Congress, this situation brought benefits for those who opposed abortion, as well. It allowed for anti-abortion residents to live in states where the local legal system did not — as they saw it — protect or foster abortion. Overall, the situation allowed Americans to "vote with their feet" and live somewhere that residents felt best reflected their values.
After all, on fundamental moral issues like abortion (as with issues like circumcision, animal rights, etc.) there is little room for the sort of "compromise" that is usually invoked to defend centralized one-size-fits-all democratic regimes. Abortion is either legal or its not, with advocates on both sides often finding any compromise to be morally objectionable.
In situations like these, the best form of compromise if often to allow differences between jurisdictions so voters, taxpayers, and citizens can at least have choice among where to live and pay their tax dollars. The smaller the jurisdictions in question, the better.
Since Roe, though, it is assumed by many — on both sides of the issue — that federal action ought to be taken to mandate either access or prohibition on a uniform, nationwide scale.
For those on the winning end, of course, a single, mandated "solution" to a problem is a great thing. For those on the losing side, the option of free choice among political jurisdictions is obliterated.
In terms of federal law at the present time, the pro-abortion side is the winning side. And even though the Iowa law does not actually prohibit abortion — we should nevertheless expect protests from pro-abortion activists in Iowa who will demand guarantees of greater access to abortion from federal officials.
Decentralization Leads to Real "Choice"
One of the more popular strategies employed nowadays to advocate for greater access nationwide is to concentrate on the costs associated with traveling from one place to another in order to obtain an abortion. The Guttmacher Institute, for example, has published a report on how many miles must be traveled in order to obtain an abortion:
In the states with the longest average distance to travel — Wyoming, North Dakota and South Dakota — at least half of women of reproductive age lived more than 90 miles from the nearest clinic providing abortion services. Women in Alaska lived an average of nine miles from the nearest clinic, but 20 percent of women in that state would have to travel more than 150 miles.
Some advocates for great accessibility have even taken to talking about an "abortion desert" — likely a play on the notion of "food deserts" — where abortions are more difficult to obtain — as noted in the LA Times:
As more states adopt more restrictive laws and the number of clinics dwindles in the so-called "abortion desert" – an area that stretches from Florida to New Mexico and north into the Midwest – women are increasingly traveling across state lines to avoid long waits for appointments and escape the legal barriers in their home states.
These facts are presented, of course, with the intention of making the case that variations in accessibility from place to place are a violation of rights of some sort, and act as de facto prohibitions that ought to be considered legally intolerable under Roe v. Wade. For example, although Iowa is a relatively small state, traveling to Minnesota or Illinois — where abortion is likely to be easily accessible indefinitely — is nevertheless more costly than driving down the street.
The implied conclusion is that restrictions such as these diminish "choice" and that everyone is every location ought to have "equal access" and "equal choice" in obtaining abortions regardless of location.
What is forgotten, however, is that by guaranteeing this kind of "choice" other types of choice must be eliminated: the choice of living in a jurisdiction where abortion is limited, for example.
It is with this latter sort of "choice" in mind, of course, that political decentralization was created to foster. As was once long assumed in the US in regards to issues like abortion, tax laws, business regulations, and alcoholic beverages, a respect for local autonomy provided greater choice and greater compromise in which differences in morality and ideology were respected from place to place.
This sort of choice reduces the stakes in national elections, fosters greater respect for local democracy, reduces cross-regional conflict, and allows for Americans to more easily relocate to legal jurisdictions that better suit their political values.
Without decentralization, every national election becomes a national referendum on which factions will control every aspect of American life, and dictate conditions from a centralized national seat of government.
Moreover, advantages of this approach work in both directions, and decentralization can hardly be shown to be just a right-wing plot. After all, the presence of some political decentralization has been key in drug legalization efforts and the "sanctuary city" movement favored by pro-immigration activists. Historically, decentralization fostered the growth the anti-slavery movement and nullification of the federal fugitive slave laws.
Decentralization Is Not Perfect
None of this is to say that the decentralization approach is perfect. It is true that decentralizing abortion policy would indeed lead to more costly travel requirements for those seeking abortions. But this is also true for sundry other issues. Residents of New York seeking to legally consume recreational marijuana must travel out of state — often at a high price. Entrepreneurs seeking lower barriers to opening a business may often find the local regulatory environment too inhospitable.
Nor is it the case that any law or policy is fine and acceptable so long as its done at the state and local level. Marijuana criminalization, for example, is objectionable at every level of government. High taxes are impoverishing whether imposed by the city council or by Congress. But it is better that there be variety and competition among jurisdictions, rather than a situation in which policies are all decided in one place for 320 million Americans and imposed uniformly across the land.
Yes, the cost of moving or traveling to another jurisdiction can be costly. Recognizing the realities such as these, Felix Frankfurter once concluded (when he opposed a federal law on child labor) "we must pay a price for federalism" by which he meant that decentralization may force us to accept that not every law in every place will suit our personal preferences. But, as Frankfurter also noted, there are often advantages to paying that price.