The Case for Small Government

A Libertarian Perspective on Economic and Social Policy

March 08, 2006

Keep Abortion Legal, But Repeal Roe

On Monday South Dakota adopted a ban on abortion except when necessary to save the life of the mother. The law is intended as a direct challenge to the Supreme Court’s Roe v. Wade decision, which held in 1973 that state laws banning abortion violate the U.S. Constitution.

Abortion is a difficult issue because both policy extremes–an outright ban on abortion, or full legalization of abortion–have substantial undesirable consequences.

Bans on abortion set the precedent that government can restrict what people do with their own bodies. This opens the door to a broad range of invasive policies, from drug prohibition to forced sterilization. Bans also breed disrespect for the law, since some women get abortions from the black market or other countries. Bans harm the women who are forced to have unwanted children as well as the pre-existing children of such women.

Fully legalized abortion also has negative consequences. Many people regard abortion as murder, and this view is not without merit. No one disputes that terminating a one-day old baby is murder, so it is not ridiculous to believe that terminating a 9 month old fetus is murder also. But then what is so different about an 8 month fetus, or a 7 month fetus, and so on? Thus, full legalization is highly inflammatory, and for a reason that is understandable even if one disagrees.

The issue, therefore, is how to compromise on abortion policy.

The best approach is to repeal Roe v. Wade. Regardless of how one feels about abortion, Roe was a bad decision. The Tenth Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.” Since states have always had the power to regulate murder, which is what abortion policy is about, the Constitution does not plausibly prohibit states from engaging in this type of regulation.

Repeal of Roe would mean that each state could set its own abortion policy. Contrary to the claims of pro-choice advocates, this would not lead to wide-scale banning of abortion. Before 1973, New York, California and three other states had already fully legalized abortion, and many others had partially liberalized their abortion laws. Numerous others would have followed suit had it not been for Roe. And there would have been more pressure on the FDA to legalize RU-486, the abortion pill.

In the absence of Roe, therefore, most states would continue to allow legal abortion on demand. Some states would impose restrictions, such as parental notification laws. Only a few states would ban abortion in most or all cases, as South Dakota is attempting to do.

The vast majority of women would therefore retain the same access to abortion as now. A few would face greater difficulty in obtaining a legal abortion, but many of these would have access in nearby states. And most would have access to RU-486, which did not exist in 1973.

The benefit of this approach is that the country would not suffer the polarization and acrimony that Roe engenders by imposing a one-size-fits-all policy on the entire country. Neither pro-life nor pro-choice advocates would be fully satisfied with this outcome, but neither would feel utterly frustrated either. That is a reasonable compromise.


At 6:23 AM, Blogger Mike Huben said...

Ah, the libertarian way. Handwaving Constitutional interpretation, wild fantasies about alternatives, and PRESTO! Problems are minimized.

With this kind of keen, economic, legal, and sociopolitical analysis, I'm sure a libertarian will be in the White House in, oh, say, never.

Changing the granularity of regions of legal abortion from nation to states doesn't ensure better anything. All it changes is who is dissatisfied and who has to battle. And like many issues beforehand, you cannot dictate to the people whether they should battle in states or nationally: they can always amend the Constitution and have done so before.

At 6:54 AM, Blogger Unknown said...

This comment has been removed by a blog administrator.

At 7:22 AM, Blogger KipEsquire said...

Since states have always had the power to regulate murder, which is what abortion policy is about, the Constitution does not plausibly prohibit states from engaging in this type of regulation.

Gee, thanks for clearing that up. Because everyone -- everyone -- agrees that a aborting a first-trimester fetus is "murder," right?

At 9:38 AM, Blogger Chris said...

In an idealistic (Constitutional) country, that is indeed how it would probably work. I have very little faith that a SC decision overturning Roe wouldn't lead to an immediate bill in Congress seeking to restrict abortion.

I certainly agree that Roe was incorrectly decided, but I hesitate to lift the protections completely until the Commerce Clause is rolled back to a reasonable meaning of "interstate commerce."

At 9:48 AM, Blogger John Harvard said...

smilerz has a good point. I wish I knew enough about congressional tea-leaf reading to have a sense of whether a federal ban would be likely to pass anytime soon. On the other hand, if the Supreme Court had the b*lls to overturn Roe, then perhaps it would also have the b*lls to adopt a stricter reading of the Commerce Clause.

One possible benefit from overturning Roe that Prof. Miron doesn't mention is that it would take the abortion issue out of presidential races and (one hopes) free up voters' minds to consider such things as Social Security and Medicare reform.

At 10:12 AM, Blogger Ivan said...

John Harvard: good point about the issues. Considering the number of Christians that would love to see big government spending for those less off, it would be a realignment around big government vs. limited government, which I think most libertarians would love.

I agree entirely with the post. Roe is bad. Abortion is fuzzy.

This is how I'd set the limit on abortion in my state: everyone vote on a continous scale from 0 tp 270. 0 means no abortion is legal. 270 means abortion is legal up until birth (9mo.= ~270 days). A number between is the cutoff where abortion becomes illegal.

I firmly believe in the wisdom of crowds. Millions voting for a number between 0-270 would probably lead to something like 75, or a bit less than the end of the first trimester.

Further, check out I'm sure there are many other sites like it. Perhaps it will be or .uk.

Either way, you're not going to stop abortions that are really demanded, AND those abortions will not be coat-hangers in a back alley.

At 10:53 AM, Blogger Robert said...

It's interesting that Roe established - for some - that abortion is a federal issue. So what happens if a federal ban on abortions is established, something that couldn't have happened before Roe? Aren't the pro-abortion crowd hoist by their own petard?

At 11:27 AM, Blogger Unknown said...

John Harvard said: "One possible benefit from overturning Roe that Prof. Miron doesn't mention is that it would take the abortion issue out of presidential races and (one hopes) free up voters' minds to consider such things as Social Security and Medicare reform."

I think just the opposite would happen. Abortion has been one of these political issues that's not really an issue. Politicians have been free to vocally support any side of the issue, and because of Roe, they haven't actually had to do anything.

To me, the best reason to overturn Roe is that elected representatives will be forced to deal with the issue and be accountable to their voters for the outcome.

At 1:48 PM, Blogger Anthony DeFusco said...

If one is trying to address abortion from an economic perspective he/she must first define the costs and benefits that result from taking a given course of action. This, of course, is easier said than done. The fact that it has not been decided whether a fetus of "x" months is a person or not is a significant cost that we have not to this point been able to define. In all likelyhood it is a cost that America as a whole, or even a given state will not be able to explicitly define. Thus, abortion is best left as a decision in the hands of each individual mother. If we take this to be the case Roe becomes a very complicated issue for a libertarian to address. On the one hand it makes sure that each mother is given the ability to choose for herself whether abortion is right or wrong, but on the other it is an intrusion of the federal government that is hard for any libertarian to justify.

At 4:45 PM, Blogger Al Brown said...

Since I believe that the government derives its power from my individual rights, my test for what government is allowed to do starts with what would be right for me to do.

I wouldn't dream of interfering with what anyone does with their own body. Its simply none of my business. The only exception is where some contractural obligation to carry the baby to term exists.

Personally, I look forward to the time when we have easy 100% reliable birth control and this issue is largely over with.

At 6:31 PM, Blogger adron_bh said...

We do largely have reliable birth control. Birth control isn't the issue, it's the fact that people DON'T use birth control and get pregant anyway. Then abortion becomes the next choice.

Either which way, abortion is obviously one that has economic impact, but primarily for the mother. The rest of society is mostly not affected by legal or illegal abortions, at least not in an economic sense.

The cost is incurred by the individual and not the state.

If they where banned then there would be much more welfare needed for the welfare state we exist in. That is definately an economic factoid.

At 6:46 PM, Blogger gumpy said...

I have no opinion either way. However, I think your logic is flawed. Why? Because of the commerce clause. When you have a none uniform policy, people will flow into that state to have abortions. This will beg for congressional regulation, and once congress is involved there will have to be a uniform policy between states.

At 6:54 PM, Blogger John Harvard said...

Gumpy, that would "beg for congressional regulation" only if some states barred their residents from traveling to other states to get abortions, or made it a crime for their residents to get abortions in other states. Non-uniform laws by themselves don't implicate the commerce clause. Laws regarding divorce and marriage, for example, vary widely from state to state, and people travel to take advantage of them, but so far the fed has not become involved.

At 7:26 PM, Blogger gumpy said...

This comment has been removed by a blog administrator.

At 7:33 PM, Blogger gumpy said...

Fair enough.
Q: If a state then passes a law preventing abortions being performed on residents from other states (where abortion is illegal of course) would there be a problem with the commerce clause then? (I only ask because wouldn't an influx of people from other states that don't allow abortions incur costs on the state allowing abortions)

At 9:45 PM, Blogger K. Liu said...

I am pro-choice and I agree that Roe v. Wade needs to be overturned so that we can divorce the abortion debate from the judiciary.

But I think that there are a few shortcomings in your argument...

1/ The most critical element here as you briefly alluded to is that if it is considered murder, then it must be banned. As I recall reading once, if you replace "abortion" with "lynching" and make the same sorts of federalism arguments or "don't do it if you don't like it" arguments, it would not work. The issue is not so much about federalism or anything of that sort; it is that society cannot agree on a definition of murder, or more precisely, a definition of life. Our system of laws do not work well without clear interpretation of definition. So I think you have missed the issue at hand.

2/ Overturning Roe v. Wade will divorce the issue from the judiciary. But it would throw it straight into political elections, which is not that much better. What we need is a referendum where people directly vote on what they think the definition of life is. Only with that would we completely divorce the issue from government.

3/ Yes, I think that federalism could be nice in this regard. California might draw the line at 6 months while Texas might draw it at 1. But federalism in this regard is only secondary to the recognition that the problem lies in a fundamental disagreement over what constitutes murder.

PS: This is off-topic, but please reconsider forcing people to get a Blogger account in order to post comments. Thanks...

At 9:56 PM, Blogger Al Brown said...

I guess what I meant by 100% reliable is a bit different. I'm thinking of implants that continously prevent conception without hormones, the need for a women to take pills for decades or having to talk your rapist into wearing a condom.

Once we have such technology, the need for abortion drops a lot.

It would also be useful if we could remove an embroyo and either freeze it or take away the ability of it cells to divide so it live out its days without becoming a baby.

Yeah, I know that stuff sounds a bit strange, But if you can avoid killing the fetus and still spare a raped women from having to raise the child of her rapist, that's a good thing. Whether that will actually fly is something else again of course.

At 10:19 PM, Blogger Bob Schubring said...

ABSTRACT:The learned Professor provides policy-level insight but lacks understanding of the key underlying concept.

The 1974 Roe v. Wade ruling was, first and foremost, a ruling made to enforce the First Amendment right of freedom of peaceable assembly, and its logical corollary, peaceable non-assembly, also known as privacy. It is, accordingly, made well within the enumerated powers of the federal government to guarantee to each state a republican form of government and to enforce the rights guaranteed under the federal constitution.

In plain English, virutally no one has bothered to read the Supreme Court's ruling, and has instead relied on the misinterpretations of the Court's language, as passed on by commentator after commentator.

The Supreme Court decidedly did not find a woman's right to reproductive choice, nor a right to kill unborn babies, in the Roe ruling.

The Roe ruling, quite simply, states that people have a First Amendment right to privacy, and explicitly finds the said right to privacy to exist within the confines of a physician's office or hospital room.

Let us consider, briefly, an America without medical privacy. Politicians and bureaucrats would be free to invade a physician's practice and place pre-emptive limits on the work done there. The patient who presents with, say, abdominal pain and a fever, would not immediately be able to schedule an emergency appendectomy...if the bureaucrats and politicians in their supreme wisdom, were to suspect that the patient and the physician might secretly be conspiring to prescribe painkillers and divert them for recreational use. In an America without medical privacy, all our personal medical decisions would be subject to interference, according to the arbitrary whims of bureaucrats and politicians. The possibility should not be overlooked that such a power could be abused by those very bureaucrats and politicians to destroy life, liberty, or property without due process of law. Indeed, it is this writer's position that such abuse is ongoing in the DEA's campaign to terrorize pain care specialists...for background please visit the Pain Relief Network, as the background is lengthy and partly irrelevant to the present discussion.

The Roe court wisely backed off from the brink of tyranny and upheld the right of medical privacy. Under the framework of Roe, a state, a municipality, or even the Congress, may only invade the privacy of a physician's practice upon probable cause that a crime is being committed, rendering the assembly of patient and physician violent, non-peaceable, and unprotected by the First Amendment.

The second part of the Roe ruling is rather simple. A person gains the power to assert a right in the courts, by first exercising that right. I cannot sue anyone for a billion dollars in damages, because I never owned anything worth a billion dollars. Likewise, an unborn person with no capacity to survive outside the womb, has no natural right to survival. The unborn person depends exclusively upon his or her biological mother to furnish life support, until such time as such life support can be provided by technological means. At the time of the Roe ruling, no life support procedure existed that would allow a first-trimester fetus to survive, and upon that logic, the Court held that no state may invade the privacy of the doctor-patient relationship during the first trimester of pregnancy, to prevent the termination of a pregnancy.

This writer finds troubling the fact that of the many millions of dollars in lobbying and electioneering funds squandered by assorted pro-life and pro-choice advocates, virtually the entire sum has been spent to advocate the overturn of the medical privacy provisions of Roe. If, for example, advanced work in immunology led to a practical means for a surrogate mother to adopt an unborn child during the first trimester, there is nothing in the Roe decision that would empower a natural mother to choose killing the embryonic child, over giving that child up for adoption by a surrogate parent. All the many millions of dollars squandered on electioneering over the past three decades could have been put toward that humane purpose, and lives would have been saved.

More troubling yet is the fact that little to no pro-life activism has sought to protect the lives of children who clearly are sufficiently developed, as to survive outside their natural mother's womb using existing technologies such as incubators and intravenous feedings.

Kansas, for example, takes the archaic position that the mother might be mistaken as to whether the baby is kicking and thrashing about in utero, and that the law cannot be sure a baby was actually alive or was simply a stillborn corpse whose observed activity was simply an intestinal contraction misobserved. In Kansas, mother and doctor are free to decapitate a child in utero to guarantee it will be an age when ultrasound imaging makes the unborn child's heartbeat an objectively-discoverable fact. Thanks to the vast industry of abortion-related electioneering, Kansas remains the only state where one can have a baby killed during delivery, and get away with it.

In conclusion, it is highly troubling that so many Americans on both sides of the abortion controversy are so ignorant of the fundamental right to medical privacy that is the basis of Roe v. Wade. This commentator gladly states that he is beholden neither to the leaders of the pro-choice movement nor to the pro life movement, because to a person, neither set of leaders has shared anything other than a common agenda to invade medical privacy...the pro-choicers for purposes of genetic improvement to the human race, and the pro-lifers for purposes of maintaining much of our society in a state of guilt over the pleasures of the marriage bed.

Bob Schubring
Libertarian for Congress
Ninth District of Michigan

At 11:26 PM, Blogger Al Brown said...

The right to privacy is where its at, Bob.

I'd vote for you.

At 11:36 PM, Blogger sarah said...

"The benefit of this approach is that the country would not suffer the polarization and acrimony that Roe engenders by imposing a one-size-fits-all policy on the entire country."

I'm sorry, but I don't see from where you're getting this conclusion. In fact, I can envision a the story where the exact opposite happens : because abortion is regulated by the state, and people feel they can more easily effect policy, at the margin, more people join the "fight" over abortion laws. This could strengthen both pro-life and pro-choice groups. The overall time spent by people arguing over abortion would increase, not decrease. This incentive effects people of all types, from extremists to moderates - since the potential to change the law has increased, the added value of one more abortion clinic bomb has potentially increased too.

Also, debate over abortion on the federal level will not disappear - both pro-choice and pro-life activists will still be fighting for a federal law. So I see no reason to reach your conclusion - essentially, you are accepting more regulation (albeit at the state level) for little or no obvious benefit.

At 1:49 AM, Blogger James said...

mike huben,

Re: your first two paragraphs, anyone can insult libertarians. Perhaps you enjoy it but it doesn't prove squat. Not about libertarianism anyway.

Changing the granularity, as you correctly claim, doesn't *ensure* anything at all. However, at a finer level of granularity, each person's odds of influencing policy increase including yours. Surely you find this better.

At 2:01 AM, Blogger Russell said...

mike huben: since you start from a position that libertarianism is a crock, there is no point in discussing anything with you.

Everyone else: The problem with abortion is that before a baby is conceived, there is one human life. After a baby is born, there are two lives. Somehow, at some point, one became two. At all times the freedoms of the one and the right of self-ownership of the two must be respected.

There is no solution; there is only compromise. Under some circumstances and some interpretations, some pregnant women give up their privacy rights; in other circumstances, some babies get murdered.

At 9:32 AM, Blogger John Harvard said...

gumpy asked: "If a state then passes a law preventing abortions being performed on residents from other states (where abortion is illegal of course) would there be a problem with the commerce clause then? (I only ask because wouldn't an influx of people from other states that don't allow abortions incur costs on the state allowing abortions)"

If an abortion-permissive state (State A) passed a law that barred people in other states from getting abortions in State A, then that would raise a Commerce Clause problem. But I don't think it's likely that any abortion-permissive state would pass such a law, because I don't see that "an influx of people from other states" seeking abortions would impose costs on State A. It would be a benefit to State A, just as it's a benefit to California to have people going there for top-drawer plastic surgery. When people buy a service from Californians, it's good for California's economy.

At 10:59 AM, Blogger gumpy said...

Again, I am not the most knowledgeable on this issue, but let's assume, for the sake argument, (I think there is some evidence that suggests this) that the women who are seeking abortions can't afford health care. Then who pays for their abortions -- the state, right? (Please correct me if I am wrong) Isn't it logical then to think that a non-uniform abortion from state to state would incur costs on the states with legalized abortion? All I am doing is try point out flaws in the host's logic.

At 5:58 PM, Blogger Mike Huben said...

James: My first paragraph is not an insult. It is an accurate depiction of the methodology of Prof. Miron's argument. Go ahead, you try to find better logic than that in the argument.

Finer granularity doesn't guarantee a greater likelyhood of influencing policy for any one person. Ask the civil rights movement veterans: they were only able to influence policy at the federal level. Nor does it make it more likely for people as a whole, depending on how they are gerrymandered or otherwise assorted into their granules.

At 7:49 PM, Blogger James said...


Finding "better logic" is not necessary to demonstrate someone insults libertarians. It's sufficient that the act have the salient attributes of an insult. Check your OED for the transitive definition of insult (v).

A single counterexample doesn't refute a claim about odds. I made no remarks about people as a whole.

At 7:27 AM, Anonymous Anonymous said...

Sure there are some women who get abortions and can't pay for medical care. But then they can't pay for help with their childbirth (or after their illegal abortion goes wrong), or medical treatment for the child either. So you end up with more need for taxes/charity with a ban on abortion.

The libertarian solution to this is to get rid of socialist medicine in the first place. Before AMA, licensing and other regulations on medical practices a good mutual medical insurance cost about $1-$2 (one days wages for a worker) per year. Everyone can afford that, so no need for state provision.

At 1:10 PM, Blogger gumpy said...

My comment's intent was simply to point out a possible problem with our host's solution of having a non-uniform abortion policy. Our host assumes status quo, which means his solution must consider the effects that it might have on state-funded health care. You may be right that making abortion illegal may incur additional costs on the state, but I still think my contention stands -- a non-uniform policy may result in influx of women seeking abortion from a non-legal state into a legal state, which could give rise to commerce clause problem. I was not trying to establish a libertarian position on abortion, for I am not libertarian -- I just like the fact that see things from non-partisan lines. Furthermore, I fully admit that I tend to favor the pro-life position, but am by no means entrenched in that position (or believe that our country is ready for RvW to be overturned).

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