My claim is simple: The Rehnquist Court was able to revive federalism, in part, because there was no reason for the Court to fear political retaliation for its federalism decisions. Congress, interest groups, and the American people do not care about federalism. On abortionrelated issues, pro-choice interests care about the pro-choice agenda; pro-life interests care about the pro-life agenda. Federalism does not figure into these agendas and, as such, it is politically irrelevant to the debate over abortion. The political fight over partial birth abortion exemplifies Congress’s uninterest in federalism.Moreover, Lynne Deniston at SCOTUSblog is probably right that, while still-pending PBABA case in the Second Circuit presents the opportunity to raise the federalism issue, reproductive rights advocates probably won't, because they (a) don't care about federalism on its own merits and (b) know very well that any further shoring up of Rehnquist federalism could bite them in the ass on future legislation they favor.
Saturday, April 28, 2007
Addendum on abortion and federalism
Neal Devins of William & Mary was way ahead of me with his new article on the subject: