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States’ rights have always been malleable. Anti-abortion laws prove that again

While the states with “trigger laws” are reading from the same states’ rights playbook, Senate Minority Leader Mitch McConnell is giving away the long game, Curtis writes.
While the states with “trigger laws” are reading from the same states’ rights playbook, Senate Minority Leader Mitch McConnell is giving away the long game, Curtis writes. (Tom Williams/CQ Roll Call file photo)

The concept of states’ rights has never been pure.

The Confederates who eventually went to war over the right of their states to own men, women and children ditched their reasoning — that what they did was none of the federal government’s business — when the enslaved escaped to states willing to grant these brave human beings their freedom.

Then, it was time for Southern politicians to demand revisions and ever harsher penalties added to existing Fugitive Slave laws that punished those who escaped and anyone who aided them, including offering bounties that ensnared even freed Black citizens (“12 Years a Slave,” true story).

Hypocrisy has always been a feature, not a bug in the American way, especially for those deemed not worthy, not possessing “rights which the white man was bound to respect,” as Supreme Court Chief Justice Roger Taney wrote in the infamous Dred Scott v. Sandford opinion in 1857.

You don’t have to reach back to pre-Civil War days for examples that prove the philosophy of states’ rights can be quite malleable when it interferes with a desired outcome.

A current proposal favored by a Missouri legislator, aimed at a clinic in neighboring Illinois, seems cut from the same cloth. It would allow private citizens to sue anyone who helps a Missouri resident obtain an abortion, including the out-of-state doctor or the person who connected patient to clinic.

Such laws, if approved in Missouri and elsewhere, while unconstitutional on their face and sure to be subject to a slew of lawsuits, could nonetheless serve as chilling warnings for anyone tempted to help a desperate client, friend or family member.

Mississippi Gov. Tate Reeves has defended his state’s pending abortion law, which has no exemptions for survivors of incest, and hasn’t ruled out banning contraception, saying on CNN only, “that is not what we’re focused on at this time.”

In Louisiana, a bill that would permit homicide charges against those who have abortions is so extreme, it has lost the support of the anti-abortion Louisiana Right to Life group, which doesn’t want to punish the women but would reserve charges for those who perform abortions or provide medication.

Abortion-inducing pills sent through the mail are being targeted in several states, though one wonders about the postal snooping required for enforcement.

Expect more states to dig in with laws — competing for which can be the most extreme — ready to go if Roe v. Wade is overturned.

While the states with “trigger laws” are reading from the same states’ rights playbook, Senate Minority Leader Mitch McConnell is giving away the long game. The Kentucky Republican is being very cagey when it comes to answering questions about a federal abortion ban should the GOP regain control of Congress. On the one hand, he told USA Today, “It’s possible.” On the other, he and fellow Republican senators can read polls saying most Americans prefer Roe stay in place.

What you might be seeing is another slick move by the senator from Kentucky, the one who ignored a Supreme Court nominee from a Democratic president and then rushed through one picked by a Republican on the way out, in order to deliver the court that looks poised to overturn Roe.

Count your fingers after shaking hands with this guy.

Many of these state and, possibly, federal laws could end up at the Supreme Court, the subject of the latest chapter of a longtime debate on abortion, because of a leaked draft of an opinion, written by Associate Justice Samuel Alito, with legalese couching the words of a man with a plan, one he’s had for a while. Alito’s draft opinion quotes Sir Matthew Hale, a 17th-century English jurist who, among other less than enlightened positions, cautioned jurors to doubt the veracity of rape charges, a skepticism that outlived him and still lingers.

If the legitimacy of rights not specifically stated in the Constitution or “deeply rooted in this nation’s history” is in question, a lot of women, minorities and disabled and LGBTQ citizens have reason to worry — especially when offered reassurances from the justice who used similar reasoning in his dissent from the decision that legalized same-sex marriage in 2015.

The current Supreme Court, supposedly above politics, has not convinced a public that sees it approving the dismantling of voting rights while proclaiming the people, not the courts, should decide important social, political and cultural issues.

Lawyers and experts told CQ Roll Call that more rights could be in jeopardy, with Duke University School of Law professor Neil Siegel saying of the draft: “It’s sweeping. It’s breathtaking. It’s — all at once, 50 years of constitutional law is erased.”

No wonder justices have been hitting the hustings, futilely trying to convince the public that all is well. Chief among them is the least self-aware man on the planet, Associate Justice Clarence Thomas, who recently said that the judiciary is threatened if people are unwilling to “live with outcomes we don’t agree with.” Has he glanced at the text trail of embarrassing evidence raging against the results of the 2020 election that clings to his wife and Jan. 6 sympathizer, Ginni Thomas?

What’s as important as what’s in Alito’s draft is what’s left out: outrage at America’s abysmal record on maternal mortality, when compared with other developed countries, especially in states likely to ban abortion. Black women are three times more likely to die of pregnancy-related causes than non-Hispanic white and Hispanic people, according to the CDC. And I am not the first to point out that concern for the unborn seems to end the moment babies enter the world screaming and helpless.

Abortion is not as simple as each side might state, of course. As the youngest of five in a Catholic family that would have counted nine children had my mother not suffered through four miscarriages, my truth is complicated. Mom endured a harrowing childbirth experience — mine, which, bless her, she never used as leverage to dole out guilt when I misbehaved.

But when she shared the details years later, that doctors had warned, after my older sister was born, that another pregnancy might not be safe for mother or child, I realized I could be both grateful for how things turned out and frightened at the real possibility of a tragic ending.

In just this past week, many have shared their own stories in whispered conversations, of how they faced a reality made bearable only because of the choices Roe v. Wade provided.

It didn’t make those choices any easier — but at least it was their right and not the state’s.

Mary C. Curtis has worked at The New York Times, The Baltimore Sun, The Charlotte Observer, as national correspondent for Politics Daily, and is a senior facilitator with The OpEd Project. Follow her on Twitter @mcurtisnc3.

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