While campaigning at the Iowa State Fair on Saturday, GOP presidential hopeful and former Vice President Mike Pence stated his support for a federal 15-week abortion ban—and that he intends to bring up the split among the candidates during the August debate:
On a campaign visit to the Iowa State Fair, Pence told reporters he expects to call out former President Donald Trump and Florida Gov. Ron DeSantis for not supporting national abortion restrictions when the candidates meet on the debate stage in Milwaukee, Wisconsin, later this month. Pence has said he would sign a federal 15-week abortion ban into law if elected president.
“My former running mate, the governor of Florida and others are suggesting that the Supreme Court returned the question of abortion to the states,” Pence said, referencing the 2022 Supreme Court decision that overturned Roe v. Wade and ended federal protections for the procedure.
“I truly do believe it’s vitally important that we seize the opportunity at the national level to advance protections for the right to life, and I’ll do so as president,” he added. “This is a really big issue. It will be on the stage in Milwaukee.”
The actual decision in the case Pence refers to, Dobbs v. Jackson Women’s Health Organization, would seem to argue that the matter has, in fact, been returned to the several states. And that’s where it belongs if the Tenth Amendment has anything to say about it.
Dobbs states in the conclusion:
We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.
The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
Pence and fellow primary candidate, Senator Tim Scott (R-SC) have both advocated for a federal ban on abortions after 15 weeks. Neither of the GOP front-runners, Donald Trump and Ron DeSantis, have stated a preference for a national abortion law as of this writing.
Abortion is, yes, an emotionally charged issue. While there is a wide range of thought, the mainstream view seems to be in favor of allowing the practice under certain circumstances (rape, incest, life-threatening condition of the mother) and a plurality seems to favor allowing the practice up to a certain point in pregnancy. But the moral issue, that is neither here nor there in this case, where the focus is not on the moral argument surrounding abortion but on the Constitutional law argument over at what level of government such laws and regulations may be passed and enforced. And the Court was clear; the Constitution is mute on the topic of abortion, therefore the issue is returned “…to the people and their elected representatives.”
One could make the argument that the House of Representatives and the Senate are the people’s elected representatives, and they would be correct. But there’s another consideration; this one:
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.
Here the language is very clear. Here, too, the Constitution is mute on the subject of abortion. There is no enumerated power to regulate abortion given to any of the three co-equal branches of the Federal government in the Constitution. The issue, then, belongs to the several states. That’s Federalism, a founding principle of the Republic, and if any individual citizen doesn’t care for the laws and practices of their state, they have 49 others to choose from. That is what the Founders intended, that each separate state be its own laboratory of liberty.
While the states are now free to regulate the practice in a way that the voters in each state prefer, the moral element does need to be addressed as well. And as my colleague Jeff Charles eloquently pointed out, there are better ways to resolve this issue than simply passing yet another law.