How the Federal government bans things

Ross Douthat (again at Andrew Sullivan's place) and Matt Yglesias are talking past each other on abortion. Summary version: Matt's idea is that the states can't adjudicate abortion qua abortion because either a fetus is or is not a person and therefore has or does not have a constitutional right to life.

Ross responds with this:

But there are all sorts of laws that regulate "conduct that takes place inside the body of a right-bearing citizen" - particularly when another party (like, say, an abortionist) performs said conduct. For instance, we have laws against selling your organs, laws against prostitution, laws against assisted suicide, laws that prohibit the sale of drugs and restrict the sale of alcohol, and so on and so forth. Some of these may be bad laws, but it seems like quite a stretch to say that they're all unconstitutional.

Ross is, I think, muddying the issue here. On some issues, the Federal government is the main agent of regulation or illegalization. He mentions organ trafficking, assisted suicide, and drug use. I'll leave organ trafficking alone, because that's not--as he puts it--"conduct that takes place inside the body of a right-bearing citizen." But there are HUGE constitutional questions about Federal bans on assisted suicide and drug use (less drug manufacture or peddling). And big battles have been and are being waged on just those issues.

On drinking age and prostitution, the Federal government technically defers to the states, but not without getting their fingerprints on the issues first. The Feds don't, for instance, mandate the legal drinking age directly, but they do deny federal highway funding to states with legal drinking ages below 21.  Likewise the Federal government's hand in regulating prostitution--say, with the Mann Act--is about interstate commerce and  the safety of underaged and vulnerable persons. Not about prostitution as a career per se or about particular acts of sex.

But in the end ALL of these laws--roundabout as they might be--are about preventing certain types of behavior. They are, as Ross would put it, about morality, or, as I would put it, about pandering to a specific political bloc's particular moral sentiments. Members of the Federal government want to clamp down on, say, drug use or drunk driving (either because they're moral actors or because they want to appease insurance companies) so they either pass the laws themselves or compel the states to conform to unofficial national standards. And, just like that, people's behaviors have to change. 

Of course they manipulate the law in these shady ways precisely because there are no constitutional mandates regarding either drug use or drinking age. If there were, there'd be no need for any new laws, whether at the Federal or at the State level, in the first place. Abortion would be no different except that the behavior the government is trying to stamp out with the PBA act is the performance by a doctor of a procedure that is only morally questionable if you think it's killing a rights-bearing citizen. And if that's the case, then the practice should constitutionally forbidden anyhow. If that's not the case, then the law suddenly (and obviously) seems arbitrary and corrupt. Either way, there's no need for it.

The broader point is that the federal government plays fast and loose with legislation all the time. But the way they're doing this vis-a-vis abortion is unique in that not only are the underlying implications of upholding the PBA Ban Act plain to everybody, but those implications directly undermine the legitimacy of the law itself. No matter where you stand on the issue.