The Fate of States’ Rights After Roe

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The anti-abortion movement spent decades citing states’ rights as an argument for overturning Roe. That facade fell away within weeks.

But first, here are three new stories from The Atlantic.

Faux Federalists

For years, anti-abortion advocates have insisted that their cause was a federalist one—an effort to return decision-making power to the states. This was not just a legal argument but a political one. “Wouldn’t it be better if such a divisive issue were decided locally?” the advocates argued, pointing to the significant state-to-state variation in support for abortion.

These talking points persisted, briefly, in the direct aftermath of Roe v. Wade’s overturning. The day that the Dobbs v. Jackson decision was announced, Florida Senator Rick Scott—the chair of the National Republican Senatorial Committee, the group tasked with winning Senate seats for Republicans—lauded the Supreme Court for defending “the foundational principle of federalism.” The Michigan Senate majority leader praised the decision as affirming “the importance of federalism and states’ rights.” Other senators and state elected officials also parroted this line. But in the few short weeks since then, it’s become clear that the anti-abortion movement won’t sit idly by while states enact the abortion policies their residents want.

Instead, anti-abortion advocates are now focused on enacting federal restrictions on the procedure. Senate Republicans are already discussing a potential national ban on abortion after just six weeks. After the Dobbs decision leaked, indicating that the Court was poised to strike down Roe, The Washington Post reported that the president of a prominent anti-abortion group has been in conversations with 10 potential Republican presidential candidates (including Donald Trump) in which most “assured her they would be supportive of a national ban and would be eager to make that policy a centerpiece of a presidential campaign.”

Right now, state and national Republicans are casting aside “states’ rights” as they seek to outlaw out-of-state abortions for people who live in places where they’re restricted. In a move reminiscent of Texas Senate Bill 8, Missouri Republicans have proposed that private citizens should be allowed to sue anyone who helps another person get an out-of-state abortion. One conservative legal organization, the Thomas More Society, is encouraging other states to adopt similar legislation. And last week in D.C., Senate Republicans blocked the Freedom to Travel for Health Care Act of 2022, which would have made it illegal to “restrict or in [any] way sanction … any individual from traveling to another State to receive or provide reproductive health care that is legal in that State.”

Senator James Lankford of Oklahoma objected to the bill, arguing that the state restrictions were unlikely to pass. (Where have I heard that before?) But even the specter of legal liability is now undermining abortion access for people who would need to cross state lines: Planned Parenthood of Montana announced earlier this month that it is preemptively limiting abortions for patients from nearby states with severe restrictions to avoid potential criminal charges or lawsuits.

Should we have ever entertained the federalism argument? After all, as recently as 2006, a near-supermajority in the Senate—including 14 Democrats—voted to prohibit minors from evading parental-notification laws by traveling to states with greater freedoms for women. Although the measure never made it to his desk, then-President George W. Bush said he would sign it. Similar legislation has been introduced by Republicans repeatedly over the years, undermining claims that they simply want these decisions to be left up to the states.

Hypocrisy in politics is nothing new. But it’s worth examining just how weak the federalism argument is on the merits.

It sounds reasonable: States are bitterly divided on abortion, so we should let them decide instead of forcing the majority of the country to accept a policy that they strongly disagree with. But today’s America lacks many of the prerequisites that would make federalism an outlet for positive policy change. Instead, it’s now often destructive. The idea that states would act as laboratories of democracy and learn from one another’s experiences requires clear consequences for good or bad policy implementation.

Electoral politics should be one way for those consequences to register, but Americans’ dismal participation in local and state elections, anti-democratic gerrymandering, and single-party-dominated states severely weaken that feedback loop to politicians. Another way is “voting with your feet”—moving away from states that enact policies you disagree with and punishing them with the removal of your tax dollars and economic output.

In decades past, political freedom and economic freedom tended to point in the same direction: For Black Americans fleeing Jim Crow or LGBTQ Americans escaping culturally conservative areas, big cities provided not only political safety but economic opportunity too. Now those arrows point in different directions because the cost of living has grown so significantly in Democratic states. Constituents who are trapped in a state because of financial insecurity are no different—at least to their elected officials—than residents who stay because they are happy with local policies.

Given all of this, the argument that overturning Roe would lower the national temperature is laughable. Instead, it has set the stage for conflict between states that try to assert their dominion over their residents and residents across the country who feel trapped under political regimes that do not reflect their beliefs.

Further reading:

Today’s News

Dispatches

Evening Read

The War in Ukraine Is Dividing Lifelong Friends

By Ruth Madievsky

Friends whom my parents haven’t seen in decades call every year for my birthday. Some have never met me. I was 2 when my family immigrated to Los Angeles from Chișinău, Moldova, in 1993. My whole life, I’ve watched my parents keep in close touch with friends who continued to live in former Soviet republics. First, they made phone calls, and more recently, they expanded to Odnoklassniki (a social network popular with friends and classmates from the former Soviet Union), and then Instagram, and WhatsApp … Nearly every diasporic person I know who grew up in the former Soviet Union has thriving long-distance friendships like this. The unwavering bonds among nashi lyudi—the Russian term for “our people”—across distance and time has always felt miraculous to me.

Read the full article.

More From The Atlantic

Culture Break

Read. Uyghur poetry written inside a Chinese prison:

“Where the words are banned to be said / The flowers are not allowed to blossom / And the birds cannot sing freely.”

Watch. You’ve never seen anything quite like Nathan Fielder’s new HBO series, The Rehearsal. The comedian’s superpower is pushing any situation into its most awkward territory—and the new series takes that to the extreme.

Play our daily crossword.

P.S.

I’m really pumped to be filling in on the Daily this week! I usually write about institutional failure, particularly as it relates to housing and infrastructure in Democratic states and cities. I just joined The Atlantic a few months ago, but if you enjoyed today’s newsletter, you can read some longer-form thoughts of mine on my antipathy toward local government, how mobility is the prerequisite for other freedoms, and who the real villain in the gentrification story is.

When I’m not writing for The Atlantic, I’m reading speculative fiction (currently on the nightstand: Brandon Sanderson’s Oathbringer and Ursula Le Guin’s The Word for World Is Forest). If any fantasy and science-fiction fans are out there, send me your favorite short stories—I recently read Ted Chiang’s “Exhalation,” and I’m eager for more in that vein.

— Jerusalem

Isabel Fattal contributed to this newsletter.