De Facto Secession

By Don Varyu

June 24, 2022

In school, the Civil War is commonly referred to as “the war between the states.” That descriptor is more memorable for a grade-schooler: two groups of states facing off in lethal combat over the idea of slavery. Beyond battlefield errors and acts of heroism, less appreciated are two factors which were decisive in victory for the North: a vastly superior rail system to move troops and supplies, and a “modern” telegraph system for Washington to communicate with its generals. In the end, the side with more money and technology won.

Although they would never say so publicly, the Supreme Court majority that threw out Roe v. Wade may have (even intentionally) touched off a 21st century version of a civil war. They told states, “hey, this law about legal abortion? Let’s forget about that—let your legislatures go and figure it out.” And many states have spring-loaded that process, anxious to outlaw abortion for all women in all cases.

Of course, it’s not as simple as all that, because pro-choice states will fervently uphold existing legal access. So, whatever—let the states decide, right? But here’s the rub: what about a case where a woman living in Idaho crosses state lines for an abortion into Washington or Oregon? What law applies? The one where she lives…or the one where the procedure is performed?

Already there are states which plan to “criminalize” a resident who strays across state lines. How would her home state know about that? It’s unlikely any woman would volunteer the information. So, it would require either the doctor to break doctor-patient confidentiality laws…or for her home state government to somehow seize her records from the neighboring state.

You can see the conflict. This “pregnancy war between the states” poses privacy threats on several levels. And the only place they could be legally settled is in the federal courts…inevitably wending their way up to the same Supreme Court that banned Roe in the first place.
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I’m not making a prediction. All I’m saying is if you think political polarization is bad now, the Supreme Court just put it on steroids by cravenly recoiling from its defense of "settled" law

The start of a modern, de facto secession could be the outcome. Before the Roe ruling, the national approval rating for the Supreme Court was 36%, its lowest level on record. Plus, private disputes between conservative and liberal members had spilled into the open. The high court looks like nothing more than a sad reflection of a polarized population. Millions are asking, “why should we trust them?” But trust here is different—it’s critical. It’s easy to ignore the rantings of a neighbor. You can always vow to vote against a governor you abhor. But what do you do about an unelected Supreme Court, one where appointments are for life? You can’t fight them. So, the only recourse is to ignore them—and defy the idea of a “common law.”

It's an old adage that “money is power, and power is money.” If states begin to fragment from the union, power would be distributed unequally, favoring states with the most wealth. The capital of the “anti-abortion” states would be Texas, with a gross domestic product of $2 trillion. Despite substantial growth in tech, the Texas economy is still largely reliant on fossil fuels—not a great long-term bet. The economies of similar anti-abortion states are vastly lower.

The “pro-choice” center would span the west coast, from the borders with Mexico and Canada. The combined GDP of California, Oregon and Washington is over $4 trillion. Add in natural allies like New York and Illinois and that grows to more than $7 trillion. In effect, the “battle” would be waged between the oil companies on one hand, against Silicon Valley and Amazon on the other.

No one envisions deploying cannon and bayonets at state borders. There’s no need. The modern choice of weapons is economic power; think about the current sanctions against Russia. The pro-abortion states might propose a boycott of Amazon. Silicon Valley could cut back the shipment of chips and other technologies to those same states. As was the case in the Civil War, money and technology would win.

This is the scenario the Supreme Court may have wrought with a modern interpretation of the notorious notion of “state’s rights.” What splintered once could splinter again. That remains to be seen. But what’s inarguable is the rot of hypocrisy and the spread of right-wing radicalism inside the highest court in the land.

Alongside democracy, justice is now in peril.
 

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