Why We're Barreling Toward a Legal War Between the States
Red states are passing laws to advance their culture war. Blue states are passing laws to stop it. The Supreme Court is going to have to decide, and there is no compromise position.
In the December 2022 print edition of The New Republic, I explored the possible futures the United States could face under the anti-democratic pressures it is now experiencing. One of the more likely outcomes was a "Two Americas" scenario, where the Supreme Court broadly upheld states' rights, and red states were unable (or unwilling) to press the issue of turning California into a legal clone of Alabama or Florida.
Only three months later, both red and blue states are vigorously pursuing a path that makes such an outcome less possible and makes one of the nastier options (some form of secession or Hungarian-style autocracy) seem far more likely.
States are passing laws that will force numerous Supreme Court conflicts, in which the court will have to pick one side or another. There is no Chief Justice Roberts–friendly middle way out. Examples of this include the upcoming decision on the abortion pill mifepristone, states trying to force insurers to drop abortion coverage and transgender health coverage nationally, and laws facilitating the kidnapping of transgender youth.
Blue states have been passing abortion sanctuary laws in response to abortion bans across the U.S. New Mexico Democratic Governor Michelle Lujan Grisham signed an executive order blocking investigations into people seeking abortions in that state, and the New Mexico legislature is on the verge of passing a law guaranteeing access to abortion and gender-affirming care. At the same time, states like Texas are already telegraphing that they intend to make it a crime to travel to other states for an abortion, and the Heritage Foundation is making it clear that opposition to sanctuary laws is a top priority.
So: What happens when Texas makes it a felony to travel to New Mexico to access these services? Or invokes the Comstock Act to prevent internet service providers and phone companies from allowing people in Texas to look up or call abortion organizations? Texas could use Senate Bill 7–style laws, laws that cannot effectively be challenged in court, to allow people in Texas to sue women leaving the state to get an abortion. This effectively criminalizes the act of leaving the state to seek an abortion, and it leads inevitably to a situation where a woman leaves Texas, gets an abortion, and cannot or does not return.
The resulting extradition fight will inevitably go straight to the Supreme Court, which will not be pulling a King Solomon. The court will have to decide for one side or the other, and it is going to infuriate the losing side. If the court sides with New Mexico, it will empower voices like Marjorie Taylor Greene's, calling for secession. If it sides with Texas, it will set off a panic in blue states, which will realize that they no longer have control over their own state laws and are at the mercy of unaccountable Christian nationalists thousands of miles away. Framed as a battle between the rights of red states and blue states, it seems obvious which one this conservative-leaning Supreme Court will side with.
With the upcoming court decision on mifepristone, blue states will realize this even sooner. When used in conjunction with misoprostol, mifepristone is used for abortions before the tenth week of pregnancy. This drug cocktail (which has been used for abortions for over 20 years and is remarkably safe) is used in over half of all abortions in the U.S.
Anti-abortion activists went judge shopping, and they landed on District Court Judge Matthew Kacsmaryk (who used to work for an anti-abortion legal group), who granted them an injunction to suspend Food and Drug Administration approval of mifepristone. Simultaneously, attorneys general from a dozen blue states sued in federal court to force the FDA to relax restrictions on mifepristone.
Again, there is no middle ground. Either drug-induced abortion remains available in blue states with laws and constitutional amendments guaranteeing a right to an abortion ... or they do not. Most legal observers regard Kacsmaryk's ruling as a fait accompli. The same is true for the ultraconservative Fifth Circuit that this decision will be bumped up to. This means that the Supreme Court is going to decide, within a year or two, whether states' rights continue to exist in practice.
Given the composition of the Supreme Court, it seems likely it will uphold Kacsmaryk and the Fifth Circuit's conservative ruling.
Again: Blue states are either going to be forced to accept the control and hegemony of hyperpartisan judges in other states dictating their local law and policy, or they will decide to bypass or ignore the federal courts. Given Governor Gavin Newsom's nuclear response to Walgreens's refusal to fill mifepristone prescriptions in California, it seems highly unlikely that he will quietly accept the termination of California's access to most abortions. When—not if—this happens, we're already into the "soft secession" scenario. Similarly, given how hard red states are pushing laws that hamstring women's health and transgender health, it seems unlikely that red states will tolerate a status quo. They will almost certainly force the matter further.
Another source of friction is the laws red states are passing to prevent health insurance companies from covering gender-affirming care anywhere in the U.S. One strategy used by states like Florida is to put an excessive statute of limitations and liability on doctors and health care providers who provide gender-affirming care or coverage. Their goal is to get insurers to stop providing malpractice coverage to doctors who treat trans patients. Tennessee's ban on trans health care for minors included a provision that the state would not do business with any insurer who provided coverage of gender-affirming care anywhere else in the U.S.
Their obvious goal is to force major carriers like Kaiser, Anthem, Blue Cross, and others to drop trans coverage throughout the country. The problem? Many blue states, like California, require that carriers provide coverage for abortion and transgender health. This creates another either/or situation: Insurance carriers can choose to do business in California or in Tennessee. They cannot do both. While this is an easy choice as long as it's just California versus Tennessee, it is less so when other red states follow suit. You end up with companies in a position of choosing between Texas and Florida on the one hand or California and New York on the other. This potentially results in the bifurcation of where companies in the U.S. do business, weakening the economic bonds between states.
Perhaps the scariest development is coming, unshockingly, out of Ron DeSantis's Florida. The Sunshine State has introduced a law that would, among other things, create a sanctuary state for people who kidnap children from other states who are "at risk" of receiving life-saving gender-affirming care elsewhere. It also includes provisions for taking children from homes if they express a transgender identity, have a transgender sibling, or have a transgender parent. Given that California and Minnesota are full sanctuary states for trans people (and parents of trans youth), this creates frighteningly plausible scenarios.
Imagine: A divorced father in California who doesn't support his transgender child's identity kidnaps them and flees to Florida to detransition them. The custodial mother in California gets a court to put out a warrant. Florida refuses to honor the warrant. The mother then puts together a posse of friends and relatives to get her child back, knowing that California won't honor Florida warrants for their arrest. The courts will (again) be forced to decide whose state laws should be enforced.
It's not just transgender people who are caught up in the problem of extradition. South Carolina has introduced a bill to authorize the death penalty for women who get an abortion. Other red states have discussed how to make it illegal to leave the state for the purpose of obtaining one. Legal scholars have sounded the alarm over the coming constitutional crisis over extradition, and deemed it unlikely that blue-state sanctuary laws would hold up.
Does this sound familiar? It should. It's the same scenario that played out with the Fugitive Slave Acts of 1793 and 1850 and led to the infamous Dred Scott Supreme Court decision that helped spark the Civil War. Scott, who had been enslaved in Missouri, resided for a time in the free state of Illinois and sued for his freedom on that basis. At the time, there were cross-border raids to liberate or kidnap people with limited ability to operate within the legal system, who lacked full rights and autonomy in that system. It's not hard to picture the same thing happening today. If (or when) this escalates to violence, it starts to look even more like "Bleeding Kansas."
I recently learned about the concept of the Roche limit. Basically, there's a point in orbital mechanics where the self-gravity of a body becomes less than the gravity of one or more larger competing bodies. At that point, the smaller body is completely torn apart by cataclysmic upheaval.
The gravity of our national identity is less than the gravity of forces pulling us apart.The things that bind this country together—our history, tradition, and legal system—are the gravity that holds us all together. The two political parties—the two competing ideologies polarizing the country, which are coalescing into red and blue states—are the countergravitational forces. Based on what we know of U.S. history, we are getting closer and closer to the Roche limit. The gravity of our national identity is less than the gravity of forces pulling us apart.
It's not just one issue in the immediate future that will test the system in a way unseen since the 1850s. There are at least three or four current issues capable of causing a constitutional crisis, whether it is the end of access to abortion nationally, banning people from leaving states to receive medical care, or legalizing kidnapping children to spirit them away down South. What's more, they're all going to hit within the next year or two. What's more, these issues don't even include other explosively bad (but entirely plausible) "black swan" events, such as judges like Kacsmaryk overturning Obergefell, the Respect for Marriage Act, and Lawrence v. Texas. Or the possibility of another transgender military ban (as has been introduced in legislation in the House and Senate). What happens if blue states refuse to process out members of their Army and Air Force National Guard units?
The Republican Party has gone all in on the culture war, and its end-state goal is to force the unconditional surrender of blue states on issues of health care access for women and transgender people. Currently, its terms are completely unacceptable to many blue-state governors, such as Newsom. As long as the two sides stick to their guns, it will inexorably lead to fracturing at the expense of federalism, far sooner than most people expected.
The gravity of ideology will simply tear us apart.
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