Last week’s leak of Supreme Court Justice Samuel Alito’s draft ruling overturning Roe v. Wade has upended American politics. Pro-choice protesters are rallying in towns and cities across the country while anti-abortion activists cheer the imminent consummation of their decades-long crusade. For American women — really, for all of us — the experience of living in this country is about to radically change.
But more, a reversal of Roe will be a landmark event in American history. Indeed, it could place these not-so-United States squarely on the road to disunion.
A pro-choice protester holds up a coat hanger, a symbol of the reproductive rights movement, that reads "We Will Not Go Back" outside the US Supreme Court in Washington, DC on May 3, 2022. (STEFANI REYNOLDS / AFP via Getty Images)
The most immediate effects of a final opinion anything like Alito’s draft will be felt by residents in states that have already passed laws restricting abortion or are poised to do so once the nearly 50-year-old decision is overturned. Yet residents of solidly Democratic states should not be so sure that the anti-abortion movement will stop at the reversion of authority over abortion access to the states.
The overthrow of Roe v. Wade is not the end goal. The real goal, as the Washington Post reported hours before the Alito leak, is now a national ban on the procedure either 15 or even merely six weeks after conception. Even for those who support abortion access, that makes a certain twisted sense: If terminating a pregnancy really amounts to murder, how can it be tolerated even in a single state?
The commentator Jeff Greenfield has argued that if Republicans seize Congress in 2022 and the presidency in 2024, abortion could be prohibited throughout the United States less than three years from today.
The Supreme Court Building is seen in Washington, Wednesday, May 4, 2022, as security measure are enhanced on the perimeter following protests sparked by news that the court might overturn cases that guarantee abortions. (J. Scott Applewhite/AP)
In the coming weeks and months, Democratic politicians will inflate their rhetoric to meet the popular outcry. For the D.C. crowd, it represents, more than anything else, a killer fundraising opportunity. President Biden has promised to work toward passage of a bill effectively codifying Roe in federal law by legalizing the procedure until the point of fetal viability, but its prospects appear hardly better than any other part of his terminally stalled agenda.
Those of us free from the burdens of official responsibility might take the logic of resistance a bit further. Schooled to honor the legislative and judicial achievements of the civil rights movement, progressives have long favored an expansive understanding of national power. That may have been a mistake, the vestige of an exceptional and unreplicable period of American history, the middle decades of the 20th century, when robust economic growth and rivalry with the Soviet Union incentivized the business class to use federal power to overthrow Southern segregation.
Those days are gone, and those victories have proven flimsy. By concentrating everything in Washington, we’ve put all our eggs in one basket, a basket that can too readily be stolen. The likely reversal of Roe suggests it is time for the left to rethink this commitment to centralization, even the nation itself. A union devoted to oligarchy, white supremacy and patriarchal control may not be worth preserving.
Liberals seeking an adequate response to the right’s chokehold on our political institutions — with a stacked Supreme Court, the Senate filibuster and rampant state gerrymandering — might take inspiration from an earlier era in which progressives resorted to states’ rights and localism as the only way to preserve at least a limited zone of freedom. Americans have long associated support for states’ rights solely with the slavery-serving Confederacy and later proponents of segregation. But in the 1850s, it was anti-slavery Northerners in the nascent Republican Party who championed states’ rights, even to the point of advocating nullification or secession.
When the Fugitive Slave Act of 1850 made it the responsibility of all citizens to assist the recapture of alleged runaways from bondage, Northern men and women, Black and white alike, banded together to resist the act’s enforcement. A network of committed and often armed anti-slavery activists, known to history as the Underground Railroad, smuggled freedom-seekers out of the slave states. William Seward, then a New York senator, denounced the act’s “invasions of State rights.”
Northern support for states’ rights became more pronounced after the Supreme Court’s notorious Dred Scott decision of 1857, which declared that no U.S. territory could ban slavery and that Black people could not be U.S. citizens.
As it happens, there are some interesting parallels between Justice Alito’s draft opinion and Chief Justice Roger Taney’s ruling in Dred Scott. In particular, historian Joseph M. Adelman observed, “Alito’s argument that rights ought to be ‘deeply rooted in history’ is precisely the logic that Roger Taney used to deny citizenship to Black Americans.”
The Dred Scott and Dobbs cases might prove similar, too, in their consequences: the wholesale delegitimization of the court among a broad swath of the populace. New York’s Assembly called the Dred Scott ruling “inhuman, unchristian, atrocious,” and resolved that the high court had “lost the confidence and respect of the people.” The legislature of Maine declared the decision “not binding, in law or in conscience, upon the government or citizens of the United States.”
Leading Republicans encouraged the belief that Dred Scott represented only the latest, and surely not the last, in a string of well-planned victories for the pro-slavery forces. Abraham Lincoln saw the ruling as evidence not merely of “partisan bias” (his words) by the justices, but of “preconcert,” a vast conspiracy to control the U.S. government, transform the Constitution and spread slavery to the free states.
What Lincoln feared most was that the conspiracy was ongoing. A case winding through lower courts could restrict the power of any state — not just territory, as in Dred Scott — from prohibiting slavery.
As abortion rights defenders today see Roe’s reversal as laying the groundwork for a national ban, Northerners in the late 1850s believed the slave power would stop at nothing less than seeing its vision for a pro-slavery America spread across the whole country. That threat angered — and united — the Northern public as nothing had before. States’ rights, even secession, beckoned as a defense of last resort. Charles Lenox Remond, an abolitionist orator second only to Frederick Douglass as a spokesman for Black Americans, saw Dred Scott as proof of the Union’s failure. It was time, he told one audience, to “break into a thousand pieces the American Government.”
Alito’s draft ruling purports to return the politics of abortion from the sanctified chambers of the judiciary to the messy realm of the democratic process. Yet a reversal of Roe would be anything but democratic. As Jon Schwarz of The Intercept observed, four of the five justices poised to strike down Roe v. Wade were appointed by presidents who, in their initial election, lost the popular vote.
Even setting the egregiously undemocratic Electoral College aside, one of those justices — Neil Gorsuch — should never have joined the court in the first place. Then-Senate Majority Leader Mitch McConnell’s refusal to consider President Obama’s nomination of Merrick Garland to fill the seat vacated on Justice Antonin Scalia’s death will be looked at by future historians as a crucial pivot for this country’s spiral toward disunion, accomplishing through obstruction what the would-be insurrectionists of Jan. 6, 2021, tried and failed to do with violence: unconstitutionally wrestle control of a branch of the federal government.
Liberals should not accept indefinite subordination to a Republican Party incapable of winning the popular vote in either presidential or congressional elections, and yet somehow able to hold onto power, especially in the judiciary, because it takes advantage of centuries-old undemocratic provisions of the Constitution as well as newer innovations like hyperpartisan gerrymandering and voter-suppression laws.
The impending Dobbs decision — and the court that issues it — should be viewed just as anti-slavery Northerners viewed Dred Scott and the Taney court: as illegitimate.
The pro-choice response may require building a true resistance movement, a network akin to the Underground Railroad. At the very least, Democratic states should band together to guarantee access to abortion for women in prohibitionist states and to make clear that a national ban would be unenforcabeable within their borders. A worthy next step would be cementing formal compacts among neighboring and like-minded states, such as those temporarily put in place early in the COVID pandemic. In time, such partnerships could offer the building blocks for something more enduring.
Secession itself needs to be an option. If Trump manages to steal the 2024 election, or wins the Electoral College but with an even more lopsided popular vote deficit than in 2016, Democrats should reconsider their decades-long commitment to national power over states’ rights, even their belief in federal supremacy and the legitimacy of the Supreme Court. It makes sense to start thinking of such matters now, even with Biden in office.
The only thing left- and right-leaning Americans have in common today is a shared sense of mutual incompatibility, two totally different ways of viewing the world. It’s become a cliche to say that America is divided. But maybe it’s time to make the divisions official. Americans are already taking matters into their own hands, with conservatives fleeing blue states like New York for more congenial climes in Florida and Texas and liberals fleeing to left-leaning states and cities.
Some form of dissolution — or devolution — could lower the intensity of our political divisions, and perhaps enable Americans more readily to split the difference on issues that we have been unable, for decades, to come to an agreement over, including abortion. Conservative areas could close their borders to immigrants and hang religious symbols in government buildings, while liberal states or regions could ban most guns and guarantee health care and housing for all. It might be forcing ourselves to stay together that causes our disputes to tip over into violence.
As the United States approaches its 250th birthday, a federal commission is working on a commemorative program it hopes will “jumpstart…our journey toward a more perfect union.” But with such basic freedoms as personal bodily autonomy suddenly called into question, it’s patriotic, not treasonous, to ask fundamental questions about the worth of the national enterprise, to subject it to the same test established at its founding: Does this government adequately secure our rights to life, liberty, and the pursuit of happiness? If not, what then?
Kreitner is the author of “Break It Up: Secession, Division, and the Secret History of America’s Imperfect Union.”
Copyright © 2021, New York Daily News
Copyright © 2021, New York Daily News