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The end of Roe, part 2: the path to a civil war?

Updated: Aug 31, 2022

Earlier I wrote about how abortion policy after the Supreme Court cancelled the constitutional right to abortion has some parallels to slavery policy before the Civil War. Before I elaborate, it’s important you know that I am not equating the inability to get an abortion to the horrors of slavery. Yes, the future harm to women, children, and society from lack of access to abortion is a dramatic and dangerous step backward. But it can’t be compared to being owned by someone else.

Like slavery politics, however, abortion policy could put us to or over the brink of civil war. It pits states and citizens against each other in a way that could trigger brutal legal battles and at least occasional violence. While the damage could be limited by strong action by state leaders, Congress, the President, the Supreme Court, and everyday Americans, we’ll all have to rise above our recent performance.

Two triggers set off the last civil war…

It took centuries for slavery to shift from accepted practice to the nation’s dominant political issue. By the 1850s, however, the Civil War over slavery became virtually inevitable, thanks to government actions. Congress expanded slave power nationwide by adopting the Fugitive Slave Law (1850). It required that free states cooperate in returning runaway slaves to their owners. Those who failed to cooperate or who impeded capture of a slave were subject to fines, jail terms, and/or payment of civil damages to the owner. This law prompted free states to ban cooperation with the law, antislavery activists to be more militant, and occasional outbreaks of violence.

The Supreme Court inflamed divisions between the states in the Dred Scot v. Sandford decision of 1857. Asked by a slave living in free territory to declare him free, the Court refused to rule, declaring that no person imported for slavery could ever be a U.S. citizen, and thus had no standing to file the suit. The court went much further, though, by declaring the 1820 Missouri Compromise, which had held the nation together for decades, unconstitutional. The Dred Scott decision inflamed anti-slavery sentiments in the North and moved the nation closer to civil war.

Now we have those same two triggers

On abortion, we now have the same two preconditions for civil war that we had on slavery: an over-reaching Supreme Court and states attempting to enforce their laws outside their borders. In Dobbs, the Supreme Court was asked to rule on a ban on abortion after 16 weeks of pregnancy as opposed to the Roe case that allowed abortion to term in some cases, but it instead reversed Roe itself, ending constitutional protections for abortion. As in Dred Scott, the Court went out of its way to overturn long-established law and endanger national unity..

The end of federal protection means that abortion policy can be made by state governments. At least some states banning abortion have already criminalized abortion providers and are rewarding private citizens for joining in their enforcement efforts. These and others may try to enforce their laws nationwide by criminalizing travel out of state travel or even assisting in that travel for the procedure. States allowing abortion are already fighting back, by encouraging an increase in providers and by providing legal protection for abortion funders, facilitators and providers.

165 years later, we are in a very bad spot

As with slavery, diverging state laws and attempts to nationalize state law enforcement may end very badly. While we’ve proven we can function with widely divergent state laws (like speed limits and taxes), states have generally limited enforcement of their laws to their own borders. Where laws differ but should be enforced nationally, like in child custody and criminal law, states have agreed to cooperate. If I murder somebody in Oklahoma and escape to Illinois, I’ll likely be returned, because murder is illegal in Illinois, too. It doesn’t look like that will be the case in abortion policy. What happens if I take somebody to Illinois for an abortion, which is illegal in Oklahoma, but not in Illinois?

States that are serious about enforcing their bans across state lines may use their law enforcement resources to arrest doctors, funders, and even public officials in other states. California and Connecticut, where abortion remains legal, have already passed laws protecting health providers and patients from enforcement of out-of-state restrictions. Such states could have to defend themselves in court and may need to confront out-of-state law enforcement. They’ll also have to deal with private citizens from other states seeking to collect bounties on abortion seekers and providers.

If it works out that way, blood will be shed. I hope that in most instances cooler heads will prevail and we’ll limit our disagreements to court cases and name-calling, but we can’t expect that to happen every time. Some confrontations between law enforcement in a state that allows abortions and both out-of-state law enforcement and abortion bounty hunters will turn violent. Opportunistic and heavily armed right-wing militias could likely jump into whatever fight they can find. They’ve already shown they favor violence, they’re advocating state secession, and they’ve been attending anti-abortion events.

The longer the court and physical battles go on, the greater the momentum for a national crisis. No-abortion states that aren’t willing to back down will increase efforts to enforce laws out of state. If that doesn’t work, they may end cooperation with other states on other policies. While secession seems far-fetched, Texas Republicans already asked for a statewide vote on seceding. As with the first civil war, states that want out will seek the support and protection of like-minded states. They’ll also seek defensible borders. That could turn into a coordinated effort of midwestern states that ban abortion to isolate Illinois. Colorado and New Mexico could be targeted by Texas and the conservative mountain states. After Kansas voters reinforced the state’s abortion protections this summer, Oklahoma and Missouri could begin to patrol or even attempt to close their boundaries.

Then the states seeking to keep the country together and the national government have some decisions to make. If they want to use force to hold the nation together, they’ll have to figure out how to deploy a military that has members from every state and territory. A U.S. military could also be outgunned by militias and private citizens on both sides. That leaves two options: 1) repairing the fissures, or 2) bargaining an agreement that either weakens or splits the nation. If it goes that far, we may create two or more countries. Looking back a couple centuries, I wonder if a peaceful breakup would have been a better option than the first civil war.

It doesn’t have to turn out that way

There are some factors making a civil war less likely. Abortion policy by itself should not trigger a shooting war. If we can avoid extending government further into personal decisions like marriage and contraception we can probably find a long-term balance on abortion. States may not be able to unify around a secession decision, because our political divisions are more within than between states. Even on abortion, opinions differ greatly between urban, suburban and rural voters. That might hold states together and keep them in the union, but it might also trigger a change in state boundaries, as suggested by conservative rural Oregonians who would rather live in Idaho.

The latter could make secession easier.

Fortunately, there are likely more ways out of a civil war than into one. Unfortunately, they’d require a lot of unsteady institutions to perform better than they have been. But all can play a role in calming the situation and strengthening our nation.

  • State governments could defuse the time bomb early in the process, by backing down from extra-border enforcement of their bans and repealing or limiting bounty laws that turn citizens against each other.

  • Congress could either ban or legalize abortion nationwide. It could also pass laws that make state abortion policy stop at the border.

  • Either Congress or the President could effectively end state abortion bans by mandating that FDA-approved drugs such as abortion pills and contraception are legal nationwide and their distribution cannot be regulated by states.

  • The Supreme Court could rule that interstate enforcement of abortion laws violates the Constitution and the national government could enforce that ruling.

  • Finally, people across the country could demand policies that more closely reflect our values and priorities. Most Americans don’t agree with extreme abortion policies at either end of the spectrum, and they could demand better from self-serving state officials. Surely we won’t repeat the mistakes made on slavery.

Either way, it’s going to be a wild ride

No country has lasted forever, and we aren’t going to be the first. If our differences are too great, we ought to be able to break up as friends. But I don’t think our differences are too great, at least over this issue at this time. If we remember we’re all Americans and demand the same from the “leaders” we’ve elected, we’ll find a way to unite and potentially even thrive again. If we can’t pull that one off, perhaps a few years of turmoil will force us into a peaceful solution that looks more like the European Union than the current United States. If not, welcome to 1861 with greater firepower. Get ready to pick a new home state, get a lot of guns, get out of the country, or all of the above!

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