Brian M Downing
One of the most divisive decisions the Supreme Court has ever issued was Roe v Wade (1973). Brown v Board of Education (1954) was unpopular, especially in the South, but it was a unanimous decision and in time, and after federal troops were sent in, school integration became part of American life.
That’s never happened with Roe and the country may be approaching a crossroad not visited since 1860. States may be preparing a new approach to rejecting it that would jar national life and alter its history.
State laws and Washington
In recent years several states have enacted laws restricting access to abortion. Alabama has outlawed them altogether and more states will do the same. All are Red States and concentrated in the South. Roe is accepted as settled law in Blue States and many “purple” ones too.
Laws that effectively if not completely ban abortion appear to be the actions of traditionalist pols eager to draw popular support. They know a circuit court of appeal will strike them down, perhaps by a large majority depending on the specific court. The Supreme Court of today, deemed right-leaning and unfriendly to Roe, would likely strike down the spate of restrictive laws if they ever got that far.
In ordinary times that would be the end of it. The laws would be done away with and Roe would prevail. We do not live in ordinary times.
The political environment
The issue has gained considerable momentum in recent years and it’s difficult to see how it can be reversed. The public’s grasp of the Constitution and American history is limited and distorted by partisanship. Respect for law and custom has been waning for decades. Judges, even the Nine in Washington, have lost the patina of honor, impartiality, and sacredness they once had. They’re seen as almost as partisan and flawed as borough aldermen.
Alabama and a dozen or so states may be positioning themselves to confront Roe, the Court, and longstanding Constitutional practices. The venue will not be the courts, though judges will struggle to keep it there. Decisions will be given by various publics.
The states may declare, separately or jointly, they will not heed court decisions striking down their abortion laws. Those who violate the laws will continue to be prosecuted and punished. Appellate decisions will not be heeded either.
The states may justify their bold step by invoking the supremacy of God’s law over the arcane reasoning of politicians and justices, especially those who’ve come to power in Washington in recent years. Other arguments will point to the importance that Madison, Jefferson, and other Framers attached to state legislatures and their steady weakening. The power of the Supreme Court to overturn so many laws and decisions, they may add, isn’t found in the Constitution. It was arrogated by the the Marshall Court in Marbury v Madison (1803) and simply accepted ever since, leaving the Court the only branch of government that cannot be checked, at least until now.
Some advocates may avoid the term, or doctrine of, “states’ rights”, though others will relish it.
The Federal response
The rejection of a Federal court decision, regardless of the level it took place at, would endanger Constitutional practice and fundamentally alter the distribution of power in the nation. Few governments relinquish power willingly.
Washington could send US Marshals into recalcitrant states to enforce Roe, but they may be blocked, arrested, or otherwise stopped by local authorities and less-than-orderly crowds. Washington could cut off funds and choke off financial transactions, but that would come at the cost of greatly deepening the crisis and inviting further breaks with the federal government.
President Eisenhower opposed school desegregation and even asked members of the Court not to overturn Plessy v Ferguson (1897). Nonetheless, when Brown did just that, his respect for the Court and rule of law required him to enforce it. The 101st Airborne Division was sent to Arkansas. The military commander, Edwin Walker, opposed integration but nonetheless carried out his orders faithfully.
Times have changed. President Trump has far less respect for the Court and the rule of law than Ike did and his grasp of the Constitution and history might not exceed the public’s by much. While Trump’s actions aren’t as predictable as those of his predecessors, a vigorous attempt to enforce Roe isn’t likely.
Alabama et al know this. They also know the next president might not be sympathetic to their cause. Hence the need for immediate concerted action to reject Roe and reestablish the power of states as soon as possible. By January 2021, a new relationship between Washington and the states will have hopefully gelled. De facto power relationships become de iure ones, it just takes a little time.
A fundamental break with the past is unsettling. However, given the deep and irreparable fissures today, the assertion of state authority at the expense of Washington’s may prevent these fissures from crippling the country, if not destroying it. Of course, it would open the way for Blue States to erode or do away with other Supreme Court decisions. Solidly Blue States want to restrict or ban access to guns but District of Columbia v Heller (2008) stands in the way.
Despite the hackneyed words Presidents feel obliged to say every January before an increasingly rancorous Congress, our union isn’t very good at all. In fact, it’s dismal. Ceding federal power may be the only way to keep the union from deteriorating badly. Our union may be less perfect then, but it might longer endure.
© 2019 Brian M Downing
Brian M Downing is a national security analyst who’s written for outlets across the political spectrum. He studied at Georgetown University and the University of Chicago, and did post-graduate work at Harvard’s Center for International Affairs. Thanks as ever to Susan Ganosellis.