On Rick Perry and Abortion: It’s a State and Federal Issue

Opinion   |   Steven Ertelt   |   Aug 5, 2011   |   4:46PM   |   Washington, DC

LifeNews has extensively reported on the pro-life abortion views of Texas governor, and possible Republican presidential candidate, Rick Perry. The governor recently said he favored the 10th Amendment when it comes the right of states to prohibit or limit abortions.

After receiving some pushback on that from pro-life advocates who say abortion should be a federal issue or that Perry should embrace a Human Life Amendment or other federal solution providing legal protection for unborn children, the governor indicated he supports a federal amendment protecting unborn children because states would have to sign off on it.

Now, Americans United for Life legal scholar and LifeNews blogger Bill Saunders has written an opinion column at Politico saying Perry is right on abortion because it is both a federal and state issue at the same time.


A tempest has erupted over Texas Gov. Rick Perry’s recent remarks about abortion. Perry has long been anti-abortion, and he was talking about the role of the Constitution’s 10th Amendment in the resolution of social issues — including abortion.

For some, when Perry said that abortion was ultimately an issue to be decided by the states — rather than the federal government or the courts — it seemed to indicate that the governor was not the anti-abortion champion they hoped to see.

It is worth noting here that deferring to the 10th Amendment is sometimes the proverbial equivalent of “no comment” for those who do not want to discuss the national implications of a policy.

But consider the 10th Amendment: “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 the people.” It is indeed a valid viewpoint that some issues are better left to the states to decide for themselves.

We don’t need to enter into an intricate parsing of Perry’s remarks — which he has since clarified to say he supports a federal anti-abortion amendment. But this controversy provides the perfect opportunity to consider whether abortion is (a) a national issue or (b) a state issue.

The answer is (c) all the above.

Abortion-rights were “nationalized” by the Supreme Court, in its 1973 decision, Roe v Wade, and in its less well-known, but equally important, companion case of Doe v Bolton, decided on the same day. Before this, the matter was the province of the states to decide, and the laws varied by jurisdiction.

If one day the Supreme Court reverses those rulings, abortion could again be left to the citizens and lawmakers of the 50 states to decide.

But, abortion rights will never be solely the province of state law. Unless the Supreme Court, in reversing Roe and Doe, held that legalized abortion was a violation of the national Constitution —as some legal scholars say it may be — the federal government would still have to confront issues related to abortion in many contexts, ranging from availability at military facilities to eligibility for federal grants to the provisions of national health care.

Many people – both those opposed to abortion and those in favor abortion rights – would agree that it is appropriate for the federal government to have a role in the debate. Options would include the enactment of new federal laws, perhaps justified by the Commerce Clause, or an amendment to the Constitution.

At the state level, restricting or even banning abortion would be possible through laws passed by state legislators. Even today, legislators around the country are rolling back the effects of Roe to create a culture in which everyone is protected in law. Furthermore, a legal challenge to one of these laws is likely to serve as the catalyst to Roe’s reversal.

Perry was right that abortion rights are and will be a matter for the states to decide. But given the significance of the issue, the federal government must still weigh in to protect our most vulnerable citizens.