Third Rail Politics and The Post-Dobbs Landscape: Respecting State Positions

The Supreme Court's landmark ruling in Dobbs v. Jackson reignited impactful debates around abortion policy in the United States. While the decision was controversial, it realigned abortion regulations with our nation's foundational principles of democratic self-governance and federalism. A look at the nuanced reality since Dobbs showcases that abortion remains legally permissible across most of the country, with states charting their own courses based on reflecting the will of their respective populations.

The Myth of a National Abortion Ban

Polarizing rhetoric fuels doomsday scenarios portraying Dobbs as ushering in a nationwide prohibition on abortion access. However, this premise is simply not accurate. The reality is that a majority of states codified allowances for legal abortion under defined circumstances.

According to data analytics from August 2023 (numbers vary depending on the source & definitions):

• 13-14 out of 50 states enacted laws severely limiting or banning abortion outright

• Around 25-26 states have laws permitting abortion before defined gestational age limits (often 15-24 weeks)

• 10-12 states have effectively codified unfettered abortion access throughout pregnancy

While there is undoubtedly a patchwork of different policies, in most of the country, abortion remains legally accessible to some degree based on guidelines set at the state level. Portrayals of Dobbs as a monolithic nationwide "abortion ban" misrepresent the truth.

Federalism and State Autonomy

A key aspect being revisited in this abortion debate is the proper role of the federal government versus state authorities in regulating personal matters like family planning and reproductive rights. The Supreme Court's decision asserted that the sweeping nationwide legalization of abortion under Roe v Wade in 1973 represented judicial overreach - imposing one solution without respecting states' abilities to chart their own courses.

Historically, issues like criminal law, family law, and other personal civil matters have largely been under the purview of individual states and their locally elected representatives - not unilateral federal statutes. The Dobbs ruling can be viewed as correcting what the Court's new majority deemed an improper extension of federal power under the guise of an abortion "privacy right" that was never explicitly enumerated in the Constitution.

The key legal question becomes whether the 14th Amendment's "due process" clause actually conferred federal protections for elective abortions, or if that matter should be left to the traditional state-based democratic processes as with many other personal policy issues. Dobbs sided with the latter view - but not by banning abortion outright as critics claim. Rather, it returned regulatory autonomy to the states while still allowing permissive federal laws if Congress wishes to enact them.

Reflecting Local Sensibilities

With the federal judiciary stepping back from mandating one-size-fits-all abortion policies, the ensuing state-level policy splits could be viewed as an expected outgrowth of our nation's diversity of cultures, values and political leanings. It reflects a reality that ethical stances on a complex issue like abortion understandably vary across different communities.

In this light, a state like Vermont codifying progressive abortion laws through democratic processes is akin to Texans or Mississippians enshrining more conservative regulations via their own elected representatives - each respecting the population's dominant sensibilities on the matter. An inherent premise of the United States is that Vermonter’s need not be beholden to policies popular in Oklahoma if their beliefs align differently, and vice versa.

While divisive, this state/local control dynamic is hardly new - it manifests across myriad policy fronts where regional populations diverge, whether urban/rural divides, contrasting cultural values, or varying economic priorities across states. The abortion issue has become a flashpoint for this perpetual tension between federal homogeneity and localized self-determination, a balance the courts must inevitably referee.

Returning to Democratic Processes

Proponents of the Dobbs ruling argue that by eliminating the previous judicial mandate on abortion regulations, it admittedly allowed some states to pursue more restrictive policies aligned with their values and mores. But it simultaneously empowered populations with contrasting perspectives to enshrine robust abortion protections reflecting their own ethics and beliefs.

The crux is that complex personal policy issues became subject to actual democratic processes at the state level, rather than nationwide judicial edicts. If a state's majority fervently opposes all abortions, the democratic solution is to elect representatives to codify that stance through legislation - as occurred in several states. Likewise, if a populace believes in maximizing reproductive freedoms, they can vote for candidates championing unfettered abortion rights as seen elsewhere.

This dynamic empowers meaningful public discourse, ethical deliberations, and constituent accountability, rather than relying on an increasingly polarized federal judiciary to impose one ethical vision on a diverse nation with conflicting moral compasses. For those embracing limited federal power and state autonomy, the Dobbs ruling represented a correction to what they viewed as judicial overreach on an issue better left for local democratic processes.

Respecting Divergent Stances

Regardless of one's personal stance on abortion ethics and policy, the post-Dobbs legal landscape demands nuanced understanding. Narratives propagating a nationwide "ban" are patently false, as most states still allow legal abortion within gestational timelines. At the same time, states codifying more stringent regulations should not necessarily be portrayed solely through an archaic, regressive lens. They reflect populations democratically enshrining their own moral frameworks and bioethical perspectives into policy.

Democracy inherently involves respecting the will of other communities to chart their own courses on complex personal issues when we hold contrasting views. The virtue of the Dobbs ruling was permitting such pluralism to manifest as various states pursue abortion policies aligning with their dominant moral, cultural and ethical leanings through proper legislative processes.

Ethical deliberations around reproductive rights remain vigorous. But framing this nuanced milieu through rhetorical hyperbole or blanket aspersions is unproductive for facilitating dialogue and bridging divides on an issue over which principled, secular disagreement is both understandable and expected in a nation as diverse as the United States.

Political Hogwash

Historically, both parties had the opportunity to federally sanction or prohibit abortion.  Here are the years, parties, and presidents:

 Republican Party:

• 2003-2007 (President George W. Bush)

• 2017-2019 (President Donald Trump)

Democratic Party:

• 1977-1981 (President Jimmy Carter)

• 1993-1995 (President Bill Clinton)

• 2009-2011 (President Barack Obama)

If either party truly had its platform on codifying, limiting, or prohibiting abortion – they had ample opportunity.  The thing of it is, abortion drives donations to both parties.  Every time either party exclaims “foul”, they immediately follow with “please send us money”.  

Vermonter’s will Find Middle Ground 

In 2022, Vermont adopted a clause within its state constitution:

 "That an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means."

While healthy debate and discussion should be encouraged, we should also respect Vermont’s political landscape.  Retraction requires a majority vote from three legislative sessions, followed by a statewide popular vote to repeal.  Highly unlikely considering Vermonter’s strong focus on individuality and responsibility (irrespective of political party).

It is possible to disagree with legislative direction AND provide support for women and their potential families - encouraging a decision to raise their child in a nurturing, loving, environment through education, assistance, and responsible support.  However, if we continue to repeat rhetoric and fail to listen to our neighbors, we’ll drive the wedge deeper – making it harder to find middle ground on other topics.