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Nationwide Prohibition: The Next Step for the Anti-Abortion Movement?

image of 1919 NYT front page with map of prohibition states

In 1919, on the eve of the passage of the Eighteenth Amendment prohibiting the manufacture and sale of alcohol, twenty-three states had already voted themselves “dry.” Yet for the temperance movement, the piecemeal, state-by-state approach to prohibition was never more than a tactical gambit; the ultimate goal was always national in scope. In the wake of the U.S. Supreme Court’s decision to revoke its recognition of a constitutional abortion right, twenty-six states are likely to severely restrict or outright ban abortion.

But as with the temperance movement, there is every reason to think that the anti-abortion movement will not rest content with the devolution of abortion policy to the states

— at least, not insofar as devolution would allow the decriminalization, legalization, or even constitutional protection of abortion in many states. Indeed, The Washington Post recently reported that anti-abortion activists and Republican legislators have started mobilizing around federal legislation to outlaw abortion after six weeks of pregnancy, and in late June, Mike Pence called on anti-abortion activists to work to ensure that “the sanctity of life is restored to the center of American law in every state in the land.” In this column, I will explain why and how the anti-abortion movement, with help from the GOP, may seek to install a nationwide abortion policy.

Within the context of our constitutional order, the moral logic of the anti-abortion movement militates strongly against allowing the “people of the various States” to “evaluate [the interests of a woman who wants an abortion and the state’s interest in ‘potential life’] differently,” as the majority opinion in Dobbs put it. The anti-abortion movement believes that abortion violates a basic right to life. With respect to fundamental individual rights, our Constitution tends to favor not allowing a majority vote in each state to determine whether or not these rights will be respected in that state — though states may decide to protect these rights more robustly than the federal “floor” requires. Thus, the rights-talk employed by the anti-abortion movement strongly suggests that abortion policy should be national.

On a more pragmatic note, the availability of abortion pills and abortion clinics in neighboring states may undermine the efforts of states hostile to abortion to restrict their citizens’ access to the procedure.

For example, some studies suggest that once Texas banned abortion after around six weeks of pregnancy, abortions among Texas women did not decline as sharply as previously thought because many traveled to clinics in nearby states or ordered abortion pills online. Even with twenty-six states banning abortion, there is no going back to the pre-Roe days — and anti-abortion activists know it.

Thus, a national abortion policy is more consistent with anti-abortion ideology and could overcome the practical limitations of a twenty-six state ban. There are four main avenues for instituting such a policy.

THE FIRST is to pass abortion bans in every state legislature. Pence’s remarks suggest that this is the policy favored by at least some in the anti-abortion movement. But this strategy has at least three drawbacks from the anti-abortion perspective. First, state houses in very liberal states are very unlikely to support anti-abortion legislation, and unlike the U.S. Congress, they are reliably pro-abortion across time. Second, a state-by-state approach is unlikely to issue in a uniform national policy, particularly not one that is as stringent as anti-abortion activists would prefer. Finally, this approach may be unsatisfactory to that portion of the anti-abortion movement that seeks to enshrine the fetal right to life as a constitutional right.

THE SECOND OPTION is to pass an anti-abortion bill in the U.S. Congress. Because Congress can act only under the authority of one of its enumerated powers, it would have to select an appropriate constitutional “hook” that plausibly empowers it to make law respecting abortion. Two possible powers are the Commerce Clause — abortion is a service sold in interstate commerce — and Section Five of the Fourteenth Amendment, which gives Congress the power to enforce Section One of that amendment through appropriate legislation. Ironically, the latter approach would require Congress to stake out the position that the fetal right to life is a fundamental right protected by Section One’s Due Process Clause — the sort of right that the right to abortion was but is no longer following Dobbs. A major advantage of the general congressional approach is that all it requires is a majority vote in the House and sixty Senate votes. That seems like a much easier lift than the other political options discussed in this column. On the other hand, the relative impermanence of this solution may worry some activists: any congressional act is, of course, potentially subject to repeal. Furthermore, the political wrangling necessary to pass a bill may ultimately issue in a watered-down policy.

THE THIRD OPTION is to try to obtain recognition of the fetal right to life as a constitutionally-protected right through the courts. The major problem with this approach is not that the U.S. Supreme Court is unlikely to recognize a fetal right to life as one of the unenumerated rights protected by the Fourteenth Amendment’s Due Process Clause. Based on the majority opinion’s reading of the common law and nineteenth-century state statutes in Dobbs, the conservative justices may welcome such an argument.

Instead, the problem is that recognition of this right probably would not empower the Court to require states to make abortion illegal, or empower Congress to pass legislation requiring the same.

The reason is the so-called “state action” doctrine: the fairly well-established principle that the Fourteenth Amendment protects against state-caused harms, not harms caused by private actors. If the Supreme Court were to recognize a fetal right to life, it could on that basis prevent state institutions from performing abortions, and perhaps even private institutions that receive state or federal funding. But it could not prevent a private clinic from performing abortions.

Ironically, it has always been the more liberal justices who have played fast and loose with the state action doctrine; in United States v. Guest (1966), for example, a majority of the Warren Court concluded that the Fourteenth Amendment empowers Congress to outlaw purely private discrimination in some circumstances. In United States v. Morrison (2000), five conservative justices — including Justice Thomas — disavowed Guest in ruling that Congress did not have the power under the Fourteenth Amendment to enact the Violence Against Women Act, which allowed victims of gender-motivated violence to sue perpetrators in federal court. Such violence by private actors, the Court held, did not fall within the purview of the Fourteenth Amendment’s grant of congressional power. Could today’s conservative Court revive Guest in order to affirmatively require states to prevent private actors from violating fetus’ rights to life? Perhaps the Court will suddenly find itself less impressed with the moral distinction between act and omission, or between the state doing harm rather than allowing harm to occur.

THE FINAL OPTION is to pursue a constitutional amendment enshrining the fetal right to life. The major disadvantage of this approach is political: any constitutional amendment must garner a two-thirds majority vote in the House and Senate, plus ratification by at least thirty-eight states. Even if all twenty-nine states that have demonstrated “hostility” to abortion rights were to ratify such an amendment, that would still be nine states short. But to paraphrase Harold Macmillan, the essence of politics is events; it is not outside the realm of possibility that events could change the political complexion of nine states in a more anti-abortion direction. A major advantage of this approach is that no pre-existing limitation on Congress’s power, such as the state action doctrine, can constrain the reach of a new amendment. In addition, once a constitutional amendment is passed, it can only be repealed by another amendment. Only one amendment — the Eighteenth — has ever been repealed.

Although it seems highly likely that the anti-abortion movement will pursue at least one of these options, advocates might do well to consider the fate of the temperance movement after national prohibition was passed. Where once temperance, true to its name, had denoted to the public mind something like moderation in alcohol consumption, with the nationwide coercive imposition of prohibition it came to be associated with fanaticism and even bigotry. After the Eighteenth Amendment was repealed in 1933, the temperance movement disappeared from the political scene, likely never to return. For better or worse, Americans are, most of them, moderates; they recoil from moral extremism. Moreover, a majority say that abortion should be legal at least in the first trimester. Thus, in seeking a hardline national policy, the anti-abortion movement may very well overplay its hand.

Political Fragmentation and Experimentation

image of US map with flags of states

On Tuesday September 22nd, the conservative lawyer and political commentator David French published his new book Divided We Fall. The book provides a careful diagnosis of current American polarization, a chilling prognosis of where this polarization might lead us, and ends with a prescription that we reinvigorate American federalism by devolving power out from the federal government and back to the states.

I found Divided We Fall especially interesting because one of my favorite books published this year was Ezra Klein’s Why We’re Polarized. French and Klein end up discussing and addressing many of the same issues; French from a more conservative position and Klein from a more liberal one. As such, it is fascinating to note where they agree and where they disagree.

Both think political polarization is increasing and that other forms of division are aligning along the political spectrum. Increasingly if you disagree with someone about who should be president, then you also likely live in a different state, read different books, watch different shows, shop at different stores, and disagree about religion.

Democrats don’t just support more redistributive taxation, they also live in cities, tend towards secularism, shop at Whole Foods, read The New York Times, own a copy of Ibram Kendi’s How to Be an Antiracist, watch Game of Thrones, and are terrified of the political power of the oppressive conservative right. Republicans, in turn, don’t just support free-market deregulation, they also live in rural and suburban areas, regularly attend church, eat at Cracker Barrel, watch Fox News, own a copy of Tim Tebow’s Autobiography Through My Eyes, watch Walking Dead, and are terrified of the cultural power of the ideologically intolerant progressive left.

The number of ‘landslide’ districts are increasing. People increasingly live around those with similar political views. As such, those they meet in real life are likely to agree and reinforce their views. Layered atop that geographical siloing, we also find ourselves in curated online environments surrounded by those of like mind.

Both books provide an excellent overview of these issues. French’s delves more into the cultural differences between liberals and conservatives, while Klein spends much more time discussing the historical polarization between the democratic and republican parties. But the essential diagnosis is quite similar.

Though French and Klein agree almost entirely on the diagnosis, they disagree partially on the prognosis. French and Klein both worry that American politics is on a trajectory to grow increasingly bitter, and become increasingly dominated by hate and fear. However, French takes his prognosis several steps further and argues the situation could grow so bad that we should currently take seriously the possibility it leads to secession. The discussion of secession is the weakest part of the French’s book. But since I don’t want this to turn into a book review, I’ll put my particular criticism aside (interested readers can keep an eye out for a forthcoming blogpost in which I review French’s book at greater length). Whether or not you take seriously the possibility of secession, however, both French and Klein agree, and are right to agree, that the health of our democracy is compromised by continual polarization into fear-filled communities.

Now here is what is fascinating. French and Klein agree on the diagnosis and much of the prognosis, and yet, their prescriptions are radically different, indeed they are almost opposite. French calls for a renewed Madisonian federalism. He thinks that as Americans grow further and further apart ideologically, it is less and less tenable to adopt one-size fits all political solutions at the federal level. Klein, in contrast, calls for reforms to increase the effective power of the federal government. Klein thinks that we should make it easier for the government to pass sweeping federal policy because if politicians were forced to actually govern they would need to find actual solutions and, more importantly, it would create track records of policy to which voters can hold politicians accountable.

Interestingly, even here, there is a profound agreement about what is needed for reform. French and Klein both think that we need greater policy experimentation. We need policy proposals to be put into effect so that we can see what the effects are. French wants to see this occur synchronously between states. He wants California and Tennessee to both attempt sweeping health care reform. In each state attempting different solutions, what works can get more broadly adopted. As more states adopt the successful policies they can each try different refinements giving us even more useful data about what works best in what sort of states. Klein wants to see this experimentation occurs asynchronously between administrations. When democrats are in control let them pass Obamacare, when republicans are in control let them actually repeal it, and then let the American people decide which approach they actually liked.

There are lots of arguments one could make for either proposal, and you can hear many of these arguments made in this discussion between David French and Ezra Klein (given how much I liked both books I was super excited that French showed up on Klein’s podcast).

French’s central argument against Klein is that sweeping federal policy is just too dangerous in a fractured political climate. If you see the future of your nation at stake, then seeing the other side empowered to enact sweeping federal change will drive your political tribe out of its mind. And given that you receive your news from the news sources sanctioned by your tribe, you won’t even end up with the meaningful data that allows you to see when the other side’s policies actually were not so bad.

Klein has several arguments against French. Perhaps the strongest being that federal action really is just necessary. We can’t wait forty years to see the effects of state by state climate reform, we need a massive federal response to global warming and we need ten years ago. We can’t wait three years to see which state’s COVID response worked best, we needed a unified federal strategy back in March.

Both French and Klein have a point, and it is useful to just note that I think there is a plausible middle ground between their views. Perhaps what we need is a federal government that can do more, but chooses to do less. Where the federal government is able to pass sweeping policies where a federal response really is needed, but which also leaves to the states anything that need not be done at the federal level. This solution would be a form of subsidiarity — the view that problems should be tackled by the most local form of authority competent to handle the problem. Thus, if states really can adopt healthcare reform, then they should be empowered to do so. But if we require national coordination to solve the free-rider problem of fossil fuel use then the federal government should be ready and able to act.

Klein and French both draw our attention to the current problem of political polarization. It’s scary to think their solutions differ as much as they do, and makes it clear there might be no perfectly good options before us. But I think it is clear that something at least needs to be done. For now, I’d start by reading both books!

The Case For and Against D.C. Statehood

photograph of D.C. skyline with Washington Monument at dusk

A bill to set Washington, D.C. on the road to statehood has recently been passed by the House of Representatives. The sponsors of the bill argue that while D.C. has a greater population than some existing states, it lacks the federal-level representation that these small states have. Though the bill has extensive Democratic support, among Republicans it is a complete non-starter. Both President Donald Trump and Senate Majority Leader Mitch McConnell have unequivocally denounced it. However, their objections don’t even attempt to make a substantive case against the measure. Trump’s refusal was given in nakedly political terms, citing the increase in Democratic voting power that would invariably come from D.C. statehood. McConnell has previously criticized the idea on similar grounds. He claimed that admitting D.C. to the Union as a state (and Puerto Rico, for that matter) was a Democratic attempt to gain votes for “full-bore socialism.”Do opponents of D.C. statehood need more substantive arguments, and if so are there any such arguments?

The original argument against the US capital residing in one of the states arose in part from an incident known as the Pennsylvania Mutiny of 1783. Members of a Pennsylvania unit of the Continental Army, which had fought in the Revolutionary War, protested outside a meeting of the Confederation Congress (the US governing body created by the Articles of Confederation) in Philadelphia. They were owed back pay and decided to force the issue upon learning of the Congress’ meeting. Approximately 400 soldiers, with access to firearms, participated in these demonstrations. Members of Congress were prevented from leaving the meeting until Alexander Hamilton persuaded them that their concerns would be addressed at the next meeting. However, he also sent a request to the leader of Pennsylvania’s executive board, John Dickinson, requesting that the state summon militia to deal with the protestors. Dickinson twice refused this request, even after Congress threatened to move the US capitol from Philadelphia. When drafting a constitution to replace the Articles of Confederation, the delegates ultimately settled on creating a district under direct and exclusive control of Congress as set forth in Article I, Section 8. Fear of depending on one of the states for its defense and infrastructure, the newly created federal government led to the creation of the District of Columbia.

The arguments in favor of statehood for D.C. are much the same as those in favor of statehood for Puerto Rico, and every other territory that eventually became a state. In a word, the reason is self-determination. The federal structure of the US guarantees states significant power of their own affairs and territory. Any territory admitted as a state to the US is guaranteed the same sovereignty that every other state enjoys. The importance of this sovereignty includes the power of political representation in the federal government allowing a state to advocate its own interests. The Articles of Confederation under which the original thirteen colonies joined lacked a strong central government particularly because the states feared imposition and interference from centralized power. The motto “No taxation without representation,” did not subside after the Revolutionary War: it can be found lacquered onto the license plates of vehicles registered in Washington, D.C. Taxation without representation is the central grievance D.C. residents want addressed. While Puerto Rico pays federal taxes for Medicare and Social Security, they do not pay federal income tax. Residents of D.C. do pay federal income tax. Yet they, like Puerto Rico, have no senators and only have non-voting members in the House of Representatives. The citizens of D.C. couldn’t even elect their own mayor until 1973, with the post instead being filled by a federal appointee.

Mayor Bowser’s bid for statehood follows the so-called “Tennessee Plan” of William Blount, the first territorial governor of the Southwest Territory. (This was the name given to what would become Tennessee after North Carolina ceded land to the federal government as a settlement for some debt.) This model involves a potential state holding a referendum among its citizens (of whom there must be at least 60,000), and should that referendum pass then holding a constitutional convention to set out the plan for the potential state’s governance. D.C. has done all of this, and so there are two substantial reasons in favor of granting the federal district statehood. First, it fulfills a founding principle of the US that much political power should be reserved for the people and the geographic area where they live, rather than vesting it all in a few buildings in one small part of the country. Second, the people of D.C. have shown overwhelmingly that statehood is what they want. (In contrast to Puerto Rico, which voted down statehood referenda four times before passing one in 2017, albeit marred by low turnout and boycotts by some political groups.)

But what of the original reason for refusing to locate the US capital in any one of its member states? Will the federal government become subject to the whim of D.C. citizen’s and their state government? Proponents of statehood for D.C. do not want to eliminate the federal district entirely. Instead it would simply be shrunk to encompass the buildings of the three branches of government, supporting office buildings, and tourist attractions tied to the capital. Nor is the federal government as small and precarious as it was in the late 18th century. Congress likely has little to fear in shrinking from a federal district to a federal enclave.

Not everyone agrees that the problem of undue influence can be so easily dismissed. But even if it could be they argue there are more problems. While most D.C. voters endorsed the referendum, around 30% did not — and for a variety of reasons. Some were reasons of practical cost and administration, but others were more fundamental — namely that granting D.C. statehood would raise constitutional problems. The official legal advice given by the Department of Justice several times in the last few decades has been that Congress lacks the power to grant D.C. statehood. The issue turns on the phrase “not to exceed ten Miles square” found in Article 1, Section 8. The “plain meaning” (a legal phrase dripping with irony) of this is taken to be that Congress can neither unilaterally enlarge nor shrink the district. Mayor Bowser’s plan points to the Alexandria Retrocession Act of 1846, in which Virginia got back some of the land it had given to the federal government to create the federal district, as evidence that Congress can change the size of the district. However critics point out that this was and had to be a bilateral agreement: the Virginia General Assembly first passed their own bill, and Congress soon passed mirroring legislation.

The 23rd Amendment to the US Constitution is argued to pose an additional problem. This amendment gives the citizens of D.C. power to elect the US president by providing representation in the Electoral College. However, even if the district were shrunk to a small enclave of buildings, it would still be guaranteed some number of electoral votes by the 23rd amendment. The per capita power of these votes would be out of alignment with the minuscule population of the scaled-back federal district.

Statehood for Washington, D.C. is currently a moot question. No statehood bill will make it through a Republican-controlled Senate. But even with a future Congress, success is not guaranteed. Constitutional issues likely to be decided by the Supreme Court may keep D.C. and its citizens under federal rule for the foreseeable future.

Removing Slavery from Textbooks

Earlier this academic year, Roni Dean-Burren, a Houston mother, posted on Facebook in response to a passage in her ninth-grade son’s history book, which referred to slaves—not as slaves—but as “workers” and “immigrants.” The post went viral, influencing the publisher “to apologize, correct the caption and offer — free of charge — either stickers to cover it up or corrected copies of the book to schools that want to replace their old ones.” They did not issue a recall of the misleading, erroneous books.

Continue reading “Removing Slavery from Textbooks”