'Abortion Disneyland': Shapiro Breaks Down How States Will Tackle Abortion

Conservative author Ben Shapiro explained Monday that overturning Roe v. Wade will “break down very quickly into a states issue,” and that each state will likely adopt a policy that squares with the State’s preexisting politics, for example: “it’s going to turn into abortion Disneyland over in California.”

Shapiro rejected the likelihood of federal pro-life or pro-choice policy when discussing the aftermath of Friday’s Dobbs v. Jackson Women’s Health Organization on “The Ben Shapiro Show.”

“It turns out that Congress does not actually have the power to regulate criminal activity within states; they have to have some sort of connection to federal policy,” Shapiro said. “State legislatures are meant to legislate on a state level, which means that the only federal solution to the abortion issue would theoretically be a constitutional amendment, which requires an enormous amount of buy-in, not only in Congress, but also in three-fifths of the states, so you would have to have an actual constitutional amendment.”

Congress is legislatively limited to their enumerated powers in Article I, Section 8 of the U.S. Constitution. This means states have authority in creating their criminal laws, as the 10th Amendment to the Constitution leaves powers not delegated to the federal government to the states or to the people. Congress attempts, as Shapiro notes, to circumvent this by appealing to a combination of a) their enumerated power to regulate interstate commerce (dubbed “The Commerce Clause”) and b) the “Necessary and Proper Clause” which grants Congress legislative power to create laws deemed “necessary and proper” to carry out their enumerated powers.

As per Article V, to begin the process of proposing an amendment to the Constitution, either two-thirds of both the House and Senate must agree or two-thirds of state legislatures must hold a convention. After one of those is satisfied, the amendment needs approval by three-fourths of the states. 

Instead, Shapiro posits, “Congressional legislation, either pro-life or pro-choice, is going to be extremely limited in what it can do here, and that means that the battles are all going to be had at the state legislative level.”

“Alabama already has its own law, New York is going to allow abortion until you actually die of old age, it’s going to turn into abortion Disneyland over in California, and meanwhile, in Mississippi, it’s going to be like you can’t get one. And that is how policy is done in the United States of America.”

Below is a full transcript of the segment:

Ben Shapiro: “It turns out that Congress does not actually have the power to regulate criminal activity within states; they have to have some sort of connection to federal policy. You’ve seen the Congress try to end around this in certain ways, like they’ll say that if it affects interstate commerce, then you can’t perform this sort of abortion or you can perform this sort of abortion. The Supreme Court is likely to strike those sorts of laws down. This also happens to be true for pro-lifers: so, if pro-lifers say ‘we want a congressional piece of legislation that bars abortion after week six,’ for example, ‘in the United States.’ Broadly speaking, there is a very good shot the Supreme Court, led by conservatives, says that there is no constitutional basis to do this because, again, the Congress of the United States is meant to legislate on a federal level. State legislatures are meant to legislate on a state level, which means that the only federal solution to the abortion issue would theoretically be a constitutional amendment, which requires an enormous amount of buy-in, not only in Congress, but also in three-fifths [sic] of the states, so you would have to have an actual constitutional amendment. The pro-choicers don’t have the power to do that; the pro-lifers, right now, don’t have the power to do that, which means that, practically speaking, this is going to break down very quickly into a states issue.

“Alabama already has its own law, New York is going to allow abortion until you actually die of old age, it’s going to turn into abortion Disneyland over in California, and meanwhile, in Mississippi, it’s going to be like you can’t get one. And that is how policy is done in the United States of America.

“If you think that that is going to motivate votes for Democrats, that — that Democrats deeply in California and New York — they’re going to be deeply exercised about the abortion issue in Mississippi, you got another think coming. And the reason I know this is the case is because in May of 2021, Texas passed a law. That law effectively ended abortion in the state of Texas. This has been true for over a year in the state of Texas, and, up until five minutes ago, no one thought that this was going to affect the 2022 election. It’s not even affecting Beto O’Rourke in the Texas gubernatorial election. 

“Okay, so the reality is that what’s now going to happen is that localities are going to decide this very differently. The people who are most passionate about this on both sides are already in their respective states. You’re not getting a bunch of passionate pro-lifers in New York and California deciding policy; you’re not getting a bunch of passionate pro-choicers in Mississippi deciding policy; and, in the purple states, the abortion policy is probably going to end up somewhere in the middle. Florida’s abortion law is probably not going to look like Mississippi’s abortion law; neither is Indiana’s.

“Right, states that are somewhere in the middle are going to end up with legislation that looks somewhere in the middle, which means that, believe it or not, right now the temperature is super high because whenever there is a shift in the status quo ante, what this means is that everybody panics and everybody freaks out. But, the way this is going to boil down practically and politically is that it’s going to settle down into a state law issue, and then, like every other state law issue, it won’t be a federal issue. And people are going to yell about it at the national level, but it really is not going to make an enormous difference in terms of our elections going forward. 

“One of the reasons you’re seeing outsized outrage from Democrats today — they know this, by the way; everybody knows this; everybody who has an ounce of legal acumen understands that what I’m saying is true — that congressional legislation, either pro-life or pro-choice, is going to be extremely limited in what it can do here, and that means that the battles are all going to be had at the state legislative level.”

Lucy Collins is a CNSNews intern and a student at Columbia University.

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