For a way forward on abortion, look to the Defense of Marriage Act


The legal issues around abortion are too complex for a two-sentence DOMA-type law. Still, Congress could take important steps to localize the issue. It could make abortion bans unenforceable across state lines, for example, which would please pro-choicers. It could clarify that states have the power to restrict abortion within their boundaries, which would please pro-lifers. Such measures allowing states to go their separate ways would provide time and political space for a durable policy consensus to form.

That prospect may seem to offer little comfort to millions of American women who have lost a constitutional right, something LGBTQ Americans did not have to face. Nonetheless, there is a possibility that a consensus will gradually form around a federal abortion-rights law — ironically, one that may resemble the Roe regime.

For now, all we know is that avoiding nationalization keeps the policy equivalent of a nuclear weapon out of the hands of absolutists on both sides. For the next 10-plus years, the United States’ national abortion policy should be to have no national abortion policy…


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