Could overturning Roe end the abortion wars? Yes, thanks to federalism – Washington Examiner

The leaked Supreme Court memo suggesting that Roe v. Wade and the constitutional right to abortion might be overturned has been received with the anticipated deep division and controversy.

But might it actually be the beginning of an end to the abortion wars that have roiled American politics since the 1973 court ruling? The history of another issue that once deeply divided the nation the religious versus the secular, Catholics versus Protestants, urban versus rural suggests just that possibility, thanks to the safety valve provided by American federalism and localism.

The parallel worth considering is Prohibition, the 18th Amendment to the Constitution, which authorized Congress to prohibit the sale and manufacture of alcoholic beverages. Today, the idea that what was known as the temperance movement would be politically potent and dramatically successful seems hard to believe. But so it was as compellingly described in Daniel Okrents history, Last Call: The Rise and Fall of Prohibition. What had been a matter of states rights and local discretion became, with a change in the Constitution, a uniform policy for the nation.

That one-size-fits-all policy capped decades of political activism by now-obscure groups such as the Womens Christian Temperance Union and, especially, the Anti-Saloon League. But, just as with Roe, a uniform policy set off a long struggle to permit states and localities to make their own rules regulating alcohol. The 21st Amendment, repealing national Prohibition, restored that discretion. The result was the departure of the wet vs. dry wars from national politics.

It's instructive to compare the abortion rights and Prohibition movements as they were before, and might be following, an end to a national policy. Prior to national Prohibition, nine states were altogether dry, and 31 others had local option laws that permitted localities to go dry. Indeed, an estimated 50% of the countrys population was subject to alcohol prohibition. It was the ambition of the Anti-Saloon League to impose that preference on the rest of the population that made Prohibition such a potent political issue.

Similarly, legalized abortion was becoming increasingly common prior to Roe New York legalized the practice in 1970 but advocates looked to the court to hasten and universalize legalization. It may be hard to think abortion and Prohibition are comparable politically, but there is little doubt that the fact that New York Gov. Al Smith, the 1928 Democratic presidential candidate, hailed from a wet state contributed to his defeat (along with his Catholicism).

A uniform national policy that ignored regional cultural and religious differences proved unsustainable to the point that the next New York governor to run for president, Democrat Franklin Roosevelt, would endorse an end to Prohibition but nonetheless win a resounding victory.

It is crucial today to note that the change in the Constitution did not lead to the legal sale of alcohol all across the country. Seven states, including long-dry Texas, Oklahoma, North Carolina, Tennessee, and Kansas, remained dry, while many others permitted local option laws that allowed smaller jurisdictions such as counties to choose to be dry. This patchwork continues to the present day: 33 states allow localities to limit the sale of alcohol, and in three (Kansas, Tennessee, and Mississippi), dry is the default, absent a law authorizing alcohol sale. But, following the passage of the 21st Amendment repealing Prohibition, the issue essentially disappeared from national politics.

It may seem impossible to believe that such an issue divided the country in ways comparable to abortion. But, as Dan Okrent writes, the Anti-Saloon League was the mightiest pressure group in the history of the country and, upon passage of its constitutional amendment, asserted that upon its taking effect, at one midnight past midnight a new nation will be born. At the same time, the anti-Prohibition New York World editorialized, After 12 oclock tonight, the Government of the United States as established by the Constitution and maintained for nearly 131 years will cease to exist. Yet just 15 years later, Prohibition made a hasty exit from national politics.

One can envision a similar course for the abortion issue. In 1970, three years prior to Roe, 20 states had already legalized abortion, most notably New York. It was arguably that steady movement toward debate and legalization that was cut short by Roe. And it seems inevitable that, were Roe overturned, we would see, as with the post-Prohibition era, a patchwork of state and local regulation.

Some will see that as select suppression of a fundamental right enshrined in the Constitution. And, without a doubt, there were court decisions that overrode local practices that had positive results. One thinks here of Brown v. Board of Education, which put an end to de jure school segregation. Others, perhaps including the majority of Supreme Court members, will see it was the American federalist system finding a way to defuse political dynamite. As Justice Samuel Alito writes in the leaked opinion draft, It is time to heed the Constitution and return the issue of abortion to the peoples elected representatives.

Its worth noting that today, there remains 10% of the U.S. population that lives in a dry county. But no state is entirely dry, and dry localities typically border those where alcohol is for sale. There are no entirely dry states, and though the National Prohibition Party continues, it has not, since 1976, received more than 10,000 votes. One can only wonder, and hope, that the abortion debate will reach a comparable equanimity with a post-Roe America.

HowardHusockis a senior fellow in domestic policy studies at the American Enterprise Institute, where he focuses on municipal government, urban housing policy, civil society, and philanthropy.

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Could overturning Roe end the abortion wars? Yes, thanks to federalism - Washington Examiner