Federalism Doctrines and Abortion Cases: A Response to Professor Fallon

Abstract

This Essay is a response to Professor Richard Fallon's article, "If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World." In that article, Professor Fallon argues that if the Supreme Court were to overrule Roe v. Wade, courts might well remain in the "abortion-umpiring business." This Essay proposes a refinement on that analysis. It argues that in a post-Roe world courts would not necessarily subject questions involving abortion to the same kind of constitutional analysis in which the Court has engaged in Roe and its progeny, that is, balancing a state's interest in protecting life against a pregnant woman's interest in choosing to terminate a pregnancy. Though questions of state power to regulate abortion might well implicate the legitimacy of state interests to regulate abortion in certain ways, questions of federal power to regulate abortion might more implicate structural constitutional concerns that transcend the perceived worth of particular regulatory outcomes. Thus, whether post-Roe the Court would remain involved in resolving the legitimacy of governmental interests in regulating abortion may depend on what kind of federal or state regulation emerged in a post-Roe world.

Keywords: Federalism, Abortion, Roe v. Wade, Federal Courts