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I’m 100% pro-life, but I don’t think it’s politically viable to say that abortion is now an issue for the states, after the Supreme Court struck down Roe v. Wade, but then to turn around and make it a federal issue again by trying to pass a federal ban. Before we go any farther with this issue, we first have to decide upon a consistent position. Is it a states’ rights issue, or is it a federal issue? It can’t be both.

Right now it is a State issue. I can't find the right to an abortion in the Constitution, emanating from a penumbra or anywhere else. For decades, I have argued it should be under the jurisdiction of the States. At the same time, I argued that if and when it gets to the States, then the Pro-life advocates will advocate for Federal jurisdiction. It seems everyone wants Federal control, as long as the Federal position is the same as theirs. If it is up to the way the political wind blows, Federal control will certainly result at times in abortion on demand.

I believe that the life of any person, born or unborn, can’t be up to the varying whims of state law.

That is better than being up to the varying whims of Federal law. For a half century, abortion was considered a constitutional right. Now that each State can do as it pleases, the folks in one State yearn to tell the other States what they must or must not do.

We don’t treat murder that way, and abortion IS murder.

Murder is a legal concept and the law defines what it is. Abortion is most definitely not murder. It could be tomorrow if a law were enacted declaring it to be murder. It is a killing, but not all killings are murder. If a law says abortion is legal, prosecution is impossible.

I believe a significant majority believe abortion is acceptable in cases of rape, incest, or to save the life of the mother.

The earliest Federal murder statute did not apply to places not under the sole and exclusive jurisdiction of the United States. That made virtually all murders prosecutable under State law, and the elements of the crime and the punishment varied from state to state.

1 Statutes at Large 112, An Act for the Punishment of certain Crimes against the United States, April 30, 1790:

At 113:

Sec. 3 And be it [further] enacted, That if any person or persons shall, within any fort, arsenal, dock-yard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons on being thereof convicted shall suffer death.