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Sending Contested Law Back to the States

Roe v. Wade was not the first time an effort to nationalize difficult legal questions failed after years-long battles.


Remember the catchy Sammy Hagar song “I Can’t Drive 55”? Inspired by the true story of Hagar getting pulled over in 1984 for going only 62 mph in a 55-mph zone, it refers to the National Maximum Speed Law passed by Congress in 1973. Collective anger over the law fueled the popularity of his tune.

The year was 1973. The oil crisis was sending gasoline prices to historic highs. Congress had to do something, and it settled on the National Maximum Speed Law. This was supposed to reduce gasoline consumption by about 2 percent, which would have provided a little relief at the pump. Despite this modest goal, the law only reduced gas consumption by about half of a percent.


After that truth was made public, another argument developed which claimed that the reduced speed laws saved lives. That was shown to be dubious as well. Not surprisingly, the real reason the law wasn’t repealed much earlier is that it significantly expanded the coffers of local governments through speeding tickets. It was taxation by citation, and governments don’t take kindly to eliminating a tax. The controversial law was not repealed by Congress until 1995.

The primary consequence of the repeal was the return of decision-making authority to the states, where it had resided before the law’s passage. Speed limit laws that seem reasonable in high-density Rhode Island might not apply to those living in West Texas, where the interstate roads are straight and wide, the visibility is 10 miles, and few vehicles are traveling at any given time. In short, speed limits are a local issue. A “one size fits all” approach simply does not work. 

So, did the repeal of that law automatically increase the speed limit nationwide? By no means. With exceptions on rural roads, the maximum speed on an urban interstate in Rhode Island and ten other states remains at 55 miles per hour.

What does this have to do with abortion? It turns out, 1973 oversaw more than one legal debacle; Roe v. Wade was also decided that year. As with the National Speed Limit Law, an issue previously under the authority of each individual state was commandeered by the federal government. This nationalization created polarization. There was an undemocratic nature to the thing, too. Instead of an act of Congress which could be reversed by the will of the people, the Supreme Court stepped in and imposed a national legal precedent without a single vote being cast.

Curiously, supporters of Roe have succeeded in marketing abortion to the masses as a national issue while simultaneously maintaining that it is a local one. Progressives contend that abortion is a decision between a woman and her doctor; that’s about as local as it gets. Yet pro-abortion activists are enraged because the repeal of Roe eliminates their centralized federal operation, forcing them to fight on 50 fronts. They protest that nine men in black robes should never decide what’s right for a woman—but that is exactly the state of affairs they have enjoyed since 1973. 


So, after nearly 50 years, Roe has been overturned. But what does that mean? Recent surveys reveal, not surprisingly, that a large portion of Americans know Roe v. Wade is about abortion, but don’t really know what its repeal will change. Abortion supporters are aggressively representing the repeal of Roe as the equivalent of completely outlawing abortion in the U.S. In reality, its repeal, like that of the National Speed Limit Law, merely returns decision-making authority to the people’s elected representatives, especially the states—the level at which such cases were historically decided. 

Like the National Speed Limit Law, Roe was not repealed earlier because of its profitability. For example, Planned Parenthood, the nation’s largest abortion provider, is one of the most lucrative “non-profits” in our country, with over one billion dollars in revenue and seven-figure executive compensation packages. Political campaigns and advocacy groups have connected their government funding and wealthy donor apparatuses to abortion causes. Just like the speed limit, there has been a systematic politicization and nationalization of a local issue, motivated largely by financial gain.

How do these two legal situations differ? Follow the money. The repeal of the National Maximum Speed Limit law did not cause national upheaval because the profit centers were local governments. In contrast, the major sources of funding in the abortion business are largely at the national level.

Case in point, federal funding is allocated to Planned Parenthood through direct grants as well as service contracts. Grant and contract recipients, including Planned Parenthood, are allowed to contribute to federal campaigns. Furthermore, they can recommend and even introduce pro-abortion political candidates to their wealthy donors. Many of these organizations are connected to news outlets which consequently show preferential coverage of pro-abortion politicians. With these drivers in place, abortion will continue to be a national issue into the foreseeable future. Sparked by the Dobbs leak in May, abortion advocates are hoping to energize their base by sustaining the “Summer of Rage” through the November elections.

Regardless of the election results, abortion’s staunch defenders can count on Biden's executive orders. In the longer term, they will attempt to create cases to reach the lower federal courts with focus on circuits with activist, abortion-minded judges. If they can hold Congress, abortion advocates will push for federal laws to keep the issue nationalized. 

Sammy was fully vindicated in 1995 when the National Speed Limit was repealed. Pro-lifers don’t have that same satisfaction with the overturning of Roe v. Wade. It is a milestone, but further legal battles loom.


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