Fellow Patriot: The voluntary financial generosity of supporters like you keeps our hard-hitting analysis coming. Please support the 2022 Independence Day Campaign today. Thank you for your support! —Nate Jackson, Managing Editor

Armstrong Williams / May 5, 2022

Abortion Battles Likely to Conclude With Aristotelian Mean

State legislatures are likely to exhibit wide variations in abortion policies.

The authenticated leak of Justice Samuel Alito’s draft 5-4 opinion overruling the United States Supreme Court 1973 abortion rights precedent of Roe v. Wade is likely to stick. The draft fully reflected the judicial philosophies of the five-member majority and the oral argument last December in Dobbs v. Jackson Women’s Health Organization.

But overruling Roe is not the nail in the coffin for abortion rights. Far from it. The overruling would entrust abortion policy to the 50 state legislatures, with a marginal role for the federal government through the power of the purse or the regulation of interstate commerce, e.g., the Hyde Amendment, which forbids federal monies to underwrite elective abortions.

Moreover, state policies will continue to be constrained by constitutional limitations. Under the Privileges and Immunities Clause of Article IV and the right to interstate travel, anti-abortion states are prohibited from preventing their citizens from obtaining an abortion in a pro-abortion state. Additionally, conservative Chief Justice William H. Rehnquist in Webster v. Reproductive Health Services declared state statutes decreeing that life begins at conception, endowed with rights of personhood protected by the Fourteenth Amendment, would be constitutionally suspect.

State legislatures are likely to exhibit wide variations in abortion policies. Liberal states like California, New York and Connecticut will probably endorse subsidized abortions on demand. Remember, then-California Gov. Ronald Reagan in 1967 signed a liberal state abortion law that anticipated the Supreme Court’s holding in Roe.

Approximately one-third of the states had liberalized their abortion laws in the three years antedating Roe. Further, abortion-rights advocates are well-funded. They can fend for themselves in the political arena: Planned Parenthood, NARL Pro-Choice America, the National Abortion Rights Federation, the National Organization of Women and the American Civil Liberties Union. Anti-abortion organizations are equally well-endowed and politically organized: National Right to Life Committee, Pro-Life Action League, Susan B. Anthony List and the Republican National Coalition for Life. Strict anti-abortion laws are likely to proliferate in conservative states like Missouri, Ohio, Texas and Georgia.

It is not anomalous that under the Constitution issues of considerable moral moment are addressed differently from state to state — for example, laws against liquor or gambling. And if abortion is thought to be sufficiently morally momentous to require a national policy, then amending the Constitution is the path forward, as with the Civil War Amendments that emancipated Black people and endowed them with full rights of citizenship. During the 45 years that have elapsed since Roe, Congress has refrained from proposing anti-abortion or abortion-rights constitutional amendment, and two-thirds of the states have never summoned a constitutional convention under Article V to do so. But the political dynamics favoring a constitutional amendment may change after Roe is overruled.

The predicable new methods of inducing abortions through interstate delivery of pills or telemedicine are inevitable and may confound abortion restrictions. The Commerce Clause of the Constitution probably prohibits states from banning interstate commerce in abortion pills or medical advice or treatments over the internet, especially in the home. If so, state abortion restrictions will be easily circumvented. The Supreme Court, however, has held that Congress may prohibit the use instrumentalities of interstate commerce to promote activities thought immoral or contrary to the national welfare — for example, liquor, lottery tickets, prostitution, misbranded drugs and impure food. These precedents suggest Congress could ban the use of instrumentalities of interstate commerce to promote abortion, at least in pro-abortion states. The question is not free from doubt. If Congress remains divided, however, no abortion action is likely.

The issue will remain with the states after Roe is overruled, and medical technology will be in the catbird seat. Anti-abortion groups must remain politically active or confront defeat through congressional inaction.


Start a conversation using these share links:

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


“Our cause is noble; it is the cause of mankind!” —George Washington

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2022 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.