July 28, 2023 | Reading Time: 3 minutes
Using abortion, red states try to expand power over blue states
What’s stopping them is a Democrat in the White House.
On a sweltering night in 1858, 48-year-old Abraham Lincoln rose to accept the Republican nomination for the Illinois senate race. The future president gave a speech that echoes to this day, as the states square off over abortion rights in a post-Roe world.
“A house divided against itself cannot stand,” Lincoln warned, alluding to the notorious Dred Scott decision in which the Supreme Court decreed that enslaved people remained in bondage even if they were taken to free states, forcing the free states to bend their laws to the will of enslaving states.
“Popular sovereignty” was the buzzword of the day, a supposed compromise in which the white men of each new state got to vote on whether to hold Black people in bondage. It was no compromise at all.
What happens to a system based on local control when states try to project their powers beyond their borders? Can the walls of our home withstand the pitched battle within?
As Lincoln spoke, enslavers were flocking to the western territories, getting those territories declared slave states. Free-staters feared that these newly-added slave states would tip the national balance of power in the Senate and the Electoral College and one day enshrine slavery nationwide.
Votes on whether to allow slavery in new states became desperate struggles marked by election fraud and even terrorism. “Popular sovereignty” wasn’t a compromise. It was an accelerant.
“I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided,” Lincoln continued, “It will become all one thing or all the other.”
Lincoln hit upon a dynamic that continues to bedevil this country. What happens to a system based on local control when states try to project their powers beyond their borders? Can the walls of our home withstand the pitched battle within?
Two years after Lincoln’s prophetic address, a new federal Fugitive Slave Law forced free states to cooperate with slave-catchers pursuing slaves who had fled to the North, and empowered federal marshals to assist the slave-catchers on free soil. Some free states passed their own laws barring sheriffs from assisting slave-catchers and county jailers from holding fugitive slaves. The Fugitive Slave Law helped galvanize average Northerners for civil war. Even those who didn’t care about the rights of Black people were alarmed that the slave states were determined to subjugate the free states.
Today, we face a similar conflict over abortion. When the Supreme Court overturned Roe v. Wade in 2022, it promised that each state would have the right to allow or ban abortion. But red states are already colluding to force their extremist agenda onto blue states where abortion is legal.
Last week, 19 Republican attorneys general demanded that the federal government give them access to the medical records of patients who travel to other states to get legal abortions. Rest assured, the Biden administration is not going to give it to them, but they’ll get what they want if the Republicans retake the White House.
Our federalist system protects the right to travel between states in search of a legal climate congenial to one’s values. Some states allow casino gambling, recreational cannabis, or permitless carry. If you want to do these things, and your state doesn’t allow them, you’re free to go to another state where they’re legal. It would be unconstitutional for Texas to directly criminalize traveling for an abortion. However, these attorneys general are trying to pry loose private medical records of care in states where abortion is legal. The root of the problem are the bounty-hunting laws which give residents the right to sue over abortions, including ones obtained legally out of state.
As during the Fugitive Slave crisis, many blue states have already passed laws of their own preventing cooperation with out-of-state investigators seeking information on legal abortions and many reproductive rights activists are looking to the historical precedent of resistance to the Fugitive Slave law.
Several blue states have started abortion pill pipelines to red states. After Dobbs, they passed laws that guarantee that no doctor will be extradited for delivering medical care that’s legal in their home state. That includes prescribing abortion pills by telemedicine. So, a doctor in New York state can prescribe abortion pills to a woman in Texas. The federal government controls the mail, so as long as there’s a Democrat in the White House, there’s little the red states can do to stop it.
The solicitor general of Texas is warning that authorities in Texas could set up a sting operation and charge a New York doctor with attempted murder for prescribing these drugs. That doctor would be safe from extradition under New York law – assuming that law would survive before the hard-right Supreme Court. What happens if the court were to deny New York’s right to protect legal abortion care on its own soil is anyone’s guess, but if the court were to deny New York’s right to protect its doctors, the ensuing conflict would shake our house to its very foundations.
Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.