Opinion | The States Will Soon Be at Each Other’s Throats Over Abortion

On May 24, 1854, Anthony Burns, an enslaved man who had escaped from Virginia, was arrested in Boston. According to the terms of the Fugitive Slave Act, enacted in 1850, enslaved people who escaped to the North would still be considered property, and federal marshals would assist in their recovery. Two days later, a multiracial crowd stormed the courthouse in a failed attempt to free Burns. A judge remanded Burns to his enslaver; 50,000 people lined the streets as Burns, guarded by 1,500 federal troops, was escorted to a ship that would return him to the man who’d enslaved him. These acts of brutal enforcement brought slavery into the free states and inflamed Northern opinion as nothing had before, as the historian Andrew Delbanco — who tells the story of Burns — argues in his book The War Before the War.

Never since then has one set of states been empowered to enforce its jurisdiction on another. But we may be arriving at another such moment with the demise of the abortion rights guaranteed by Roe v. Wade. Legislators in Missouri and Oklahoma have discussed — but not yet passed — legislation that would allow individuals to sue someone in another state who facilitated an abortion for a citizen of the home state. Last year, Texas passed legislation that would allow a state prosecutor to seek the extradition of a telemedicine provider of abortion pills in another state. These measures have, in turn, provoked a reciprocal response in pro-abortion rights states: California and Connecticut have passed laws designed to protect citizens from extra-territorial punishments.

The stakes of the abortion debate are not, of course, comparable to those over slavery, an intrinsic evil in which one group of people profited from depriving another of their liberty and humanity. It was, in fact, the Fugitive Slave Act that first compelled many Northerners to recognize that monstrosity. Delbanco quotes a Bostonian who wrote in the aftermath of Burns’ capture, “We went to bed one night old-fashioned, conservative, Compromise Union Whigs & woke up stark mad Abolitionists.”

Abortion is not like that. Each side of the debate is motivated by a metaphysical proposition that is all but incomprehensible to the other. Those of us who believe in a woman’s right to choose would like to believe that the other side will not survive exposure to the facts, yet 50 years of constitutionally protected abortion has barely moved the needle of public opinion (save perhaps in the other direction). We will not settle the issue with another civil war, thank God, but we may be entering a metaphorical civil war which will continue to rage for a long time. And given the violence with which our politics is now infused, we cannot be altogether confident that the war will remain metaphorical.

Could we defuse the hostilities, as the draft of Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization seems to argue, by transferring the conflict from the court to the political branch? I am sympathetic to that argument. In my 2019 book, What Was Liberalism?, I argued that liberals have paid a high price for resorting to the counter-majoritarian institution of the judiciary to protect cherished rights. The abortion issue, I wrote, “has turned every Supreme Court nomination into a life-and-death battle, has vastly exacerbated national polarization, and quite possibly got Donald Trump elected president.” Perhaps that was a price worth paying to ground abortion rights in the Constitution; but it was a terribly high price. The judiciary, in any case, is no longer the liberal’s friend; a right that lived by the court is about to die by the court. The issue is, in fact, almost certain to return to the Supreme Court, which could issue opinions that might split the country even further.

The political system of the less divided America of 1973 might have come to some sort of broadly acceptable solution to the question of abortion. Today, however, our politics are already so inflamed that the end of Roe will instead act as an accelerant. Senate Republicans have already blocked the Democrats’ effort to enshrine abortion rights in federal legislation; Democrats will move heaven and earth to prevent Republicans from outlawing abortion. A far likelier outcome is a state-by-state checkerboard of access and prohibition, more or less total in each case, that reflects our ever-growing polarization — “Pro-Choice America” and “Pro-Life America.” Many Americans already choose to live in an ideologically friendly atmosphere; the cleavage over abortion might lead both liberals and conservatives to migrate further.

All that’s bad enough; but it will be worse still if what happens in Texas doesn’t stay in Texas. Extra-territoriality still lies over the horizon; Connor Semelsberger, an official with the anti-abortion Family Research Council, told me his organization was far more focused on reviving pre-Roe state laws restricting abortion and on preventing the sale of abortion pills than on pursuing action across the border. Yet efforts to limit the sale of abortifacients will almost inevitably involve enforcement beyond state lines, as is the case with the Texas extradition statute. Katie Glenn, government affairs counsel of Americans United for Life, testified in Texas in favor of the new law and says she expects to see “interstate scuffles” as pro-abortion rights states resist the cross-border reach of anti-abortion legislation. Those scuffles could involve either extradition demands or attempts to hold out-of-state figures, whether doctors or Uber drivers, civilly liable for facilitating an abortion. The new Connecticut statute specifically bars local officials from cooperating with extradition requests over the facilitation of abortion. Just so, in 1850, did Vermont pass legislation requiring citizens to help, rather than apprehend, fugitives running from slavery.

The Supreme Court, which seems to think it will have finally washed its hands of the issue, will have no choice but to adjudicate the dispute. The court has been here before as well. In 1846, Dred Scott, an enslaved man from Missouri, sued for his freedom on the grounds that his enslaver had taken him into Northern territories where he had lived for many years. The case finally reached the Supreme Court in 1857. The court ruled that Scott remained mere property, as the Fugitive Slave Act stipulated. Chief Justice Roger Taney then added, in perhaps the single worst decision in the history of the Supreme Court, that because enslaved people had no “rights which the white man was bound to respect,” the federal government could neither confer citizenship on Black people nor bar slavery in federal territories. The Dred Scott decision convinced Northerners that the “slave power” had gained control over all three branches of government. Slavery could not be extirpated save by war.

The questions that will face the court are, of course, very different this time: Whether the state laws in question violate a principle implicit in the Constitution like the “right to travel,” or which of two conflicting state laws take precedence over the other. Mary Ziegler, a law professor at Florida State University and the author of several books on abortion and the law, says there simply are “no settled answers to these questions.” After all, states have not tried to impose their laws on one another for the past 170 years or so. “There’s not a lot to constrain the justices,” says Ziegler, “which adds to the unpredictability.” One can only hope that the court will act in such a way as to dampen conflict rather than advance the anti-abortion cause, though there’s little reason to have much confidence.

The United States really is an exceptional nation — just not in the ways we like to think. The U.S. is turning against abortion rights while much of the rest of the world, including Catholic Latin America, is increasing access. Structurally, however, something almost more dismaying is going on: While almost all our peer countries have settled on some compromise that protects abortion rights with restrictions that seem reasonable to the average citizen, we are preparing for a knife fight. Having lost our ability to settle even modest differences, it is far, far beyond us to adjudicate profound ones. Perhaps in 10 years, or 20, we will find our way to a new consensus. Until then, it seems, it’s civil war.