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Federalism, Legislation, and Abortion
Tatum Brumble
American Government 1113
Professor Matthews
February 21, 2025
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Federalism, Legislation, and Abortion
One of the primary tenets of federalism is the separation of powers among national, state, and
local governments. The United States has relied on iterations of this principle to govern since the
Constitution’s inception in 1787, and it continues to do so today. Over time, American society has
evolved significantly in various aspects, including culture, economics, religion, and citizens’ perceptions
of civil and human rights. As a result, federalism and its role in government have evolved and adapted out
of necessity. The following text will analyze the history of American federalism, its evolution over time,
and how it applies to the current state of abortion laws.
Dual Federalism
Many Americans were skeptical of a strong national government after the American Revolution.
As a testament to the distrust, the Articles of Confederation, which followed the revolution but preceded
the Constitution, gave the states significantly more power than the national government. The next 100
years, approximately speaking, were characterized mainly by a power struggle between state and federal
governments. The Supreme Court was regularly involved in matters of jurisdiction between state and
federal powers. Additionally, a commonly held sentiment amongst Americans was that government
interference was at odds with industrial development. Establishing a more clearly defined division
between state and federal powers was necessary, giving rise to dual federalism. This type of federalism is
also called “layer cake federalism” because instead of cooperating or blending with each other, the roles
of each level of government were separated, similar to the formation of a layer cake. As the Industrial
Revolution in America ramped up in the late 19th century, businesses became more powerful, and market
power concentrated. Dual federalism, giving limited power to a national government for intervention,
gave way to business collusion, unfair market conditions, and a rise in wealth inequality. The catalyst for
change was the Great Depression in 1929.
Cooperative Federalism
The Great Depression was marked by record-high unemployment rates, shrinking economic
output, failing businesses, and a crashing stock market. Americans needed a more powerful national
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government to cooperate with the states to stimulate the economy, provide more opportunities to the
people, and restore hope to a nation in distress. This necessity gave rise to cooperative federalism. In
contrast to the layer cake metaphor for dual federalism, the cooperative iteration of federalism was
referred to as “marble cake” federalism, symbolizing the blending of each level of government. FDR’s
New Deal significantly influenced this new version of federalism. Under the New Deal’s direction,
nationally defined goals were established, and the states were highly incentivized with grants and aids to
comply. In addition, the New Deal provided Americans with life-changing benefits that are still relevant
today, like social security, unemployment insurance, and protection for labor unions. Increasing the
national government’s size and influence allowed funding to flow more freely to state and local
governments, which, in theory, allows that funding to be used more effectively, with local politicians
being more in tune with the needs of their constituents than national politicians. The disadvantage is the
different levels of funding and benefits granted by states based on commonly held values of particular
state officials, and those are often misaligned with the residents of the state.
Application of Modern Federalism
The American legal system is based on common law principles. Cases where no precedent has
been established go to the Supreme Court. A judgment is made based on the Supreme Court’s
interpretation of the Constitution, and future cases will be ruled similarly under the new precedent. In
1973, Norma McCorvey, under the alias “Jane Roe,” after being denied an abortion by the state of Texas,
brought her case to the Supreme Court, which ruled in favor of McCorvey, citing the Due Process Clause
in the 14th Amendment to the Constitution. In 2022, a majority conservative Supreme Court overturned
Roe v. Wade, delegating reproductive rights to the states. This decision is centered around federalism and
underscores the importance of different values held from state to state, as many states quickly outlawed
abortion. In opposition, others took action to protect women’s reproductive rights. It is not a matter of
opinion to say women should lose or gain a right once granted by the United States Constitution,
depending on the state in which they reside. That is one of many reasons this case is so contentious and
will be for the foreseeable future.
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References
Merelli, A. (2019, June 27). Elizabeth Warren says abortion access should be a federal law. What does
that mean?. Quartz. https://qz.com/1653902/at-primary-debate-warren-calls-for-federal-law-on-abortion
Krutz, G., & Waskiewicz, S. (2021). In American Government 3e. OpenStax.
https://openstax.org/books/american-government-3e/pages/3-2-the-evolution-of-american-federalism
Gupta, T. (2021, February 27). The Future of Federalism. Harvard Political Review.
https://harvardpolitics.com/the-future-of-federalism/
Public Broadcasting Service. (n.d.). Crash course government and politics. PBS.
https://www.pbs.org/video/crash-course-government-4/
Brey, J., Greenblatt, A., Hutton, Z., & Smith, C. (2024, January 13). The biggest issues to watch in 2024.
Governing. https://www.governing.com/politics/the-biggest-issues-to-watch-in-2024