In July the U.S. Court of Appeal for the 8th Circuit ruled that the ban is inconsistent with Roe v. Wade because it does not include an exception for abortions deemed necessary to protect the mother's health. But even in the absence of Roe v. Wade, the law would be unconstitutional because Congress has no authority to regulate abortion, a power the Constitution reserves to the states.

 This is not the sort of distinction Democrats, traditionally fans of a powerful federal government, usually worry about. But perhaps they should start. After all, Republicans have been running Congress for a decade and the executive branch for half that long, and they are not shy about using Leviathan for their own ends. A minority party should recognize the advantages of federalism, which lets New York and Utah go their separate ways on contentious matters such as abortion instead of subjecting them both to decisions made in D.C.

 In 2003, after the U.S. Court of Appeals for the 9th Circuit sided with two patients who argued that the Constitution allows California to legalize medical marijuana without interference from Washington, their lawyer, Boston University law professor Randy Barnett, declared that "federalism is not just for political conservatives." The same observation could be made regarding federal attempts to override Oregon's law permitting physician-assisted suicide, an issue the Supreme Court is now considering.

 In both cases, left-liberals found themselves standing up for federalism while conservatives defended an overbearing central government. If the Republicans retain their grip on the levers of national power, perhaps this will be the shape of things to come.