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Dobbs is an enormous victory for both the pro-life and the federalist movements. The right to regulate abortion has been returned to the states in about as unequivocal language as possible. Even if opponents of the decision had the votes to pass a national abortion rights law, it would fail a Constitutional challenge. But there is a completely constitutional lever by which Congress could nominally respect the decision but still force abortion legalization throughout the country. That lever is a little-known case called South Dakota v. Dole.
(I should note that I worried about writing this post at all, for fear of informing our opponents about a powerful tool in their inventory that they probably don’t realize they have.)
South Dakota v. Dole comes from 1984 when Mothers Against Drunk Driving was at the height of its power. MADD had successfully lobbied Congress into passing the National Minimum Drinking Age Act, which required states to raise their minimum drinking age to 21 or lose 15% of their federal highway funding. Why was this method chosen? Because the 21st Amendment specifically forbids Congress from passing national laws regulating alcohol. States are perfectly able to, though.
The Court found that Congress’s spending authority gave it the right to attach conditions that required states to pass laws the federal government was prohibited from passing, so long as the pressure caused by the conditions wasn’t too coercive for Renquist’s conscience.
So imagine an “Abortion Rights Protection” bill that requires states to legalize elective abortion until the moment of crowning or lose 10% or 15% of their federal Medicaid funding. How many states could hold out? No matter how fervent, pro-life beliefs won’t balance a budget. Granted, such a law could be removed, or even reversed (criminalize abortion or lose a chunk of funding) by the next instance of Republican control of the presidency, Senate, and House, but this kind of switching back and forth is hardly a formula for good governance.
This decision must go. Congress must be forbidden from using its spending power to coerce states into passing laws that would be unconstitutional for Congress to pass. The Tenth Amendment, interpreted by a Supreme Court that recognizes that it even exists, should be enough, but if a case with a proper plaintiff cannot be made, Republicans should use their likely coming tsunami of state legislative control to get a Constitutional amendment passed. States’ rights mean nothing so long as this case is a controlling precedent.Published in