It had been laid out in detail in the newspaper. Endlessly discussed on Fox and CNN.
There were maps breaking down which states had “trigger laws” in place that would immediately ban abortion once the Supreme Court overturned Roe v. Wade, which states might take longer to bar the procedure, and which would uphold abortion rights.
And yet, when the decision came and the clinics abruptly closed and women started scrambling across state borders, there was something jaw-dropping about it all.
Yes, we are a country divided. Everyone knows that. But were we really going to fracture on such an intimate, high-stakes question?
And what does it mean for the future of American democracy when it’s every state for itself?
The many shades of federalism
The question of state power is as old as the Republic itself.
After the Revolution, the states formed a loose confederation and delegated only limited powers to the national government. But when that confederation proved ineffectual, delegates to the Constitutional Convention forged a more potent national government — and layered it atop the state governments.
This was federalism. The division of powers.
The Constitution was vague, though, about how exactly those powers should be divided. And the tension between state and federal power nearly tore the country asunder with the Civil War.
But for much of our post-Civil War history, the national and state governments mostly worked together to address economic challenges, provide citizens with health care coverage, and clean up the environment. Academics have called this “cooperative federalism.”
More recently, though, the country has veered away from this relative harmony and entered what scholars have called an era of “uncooperative federalism” or “polarized federalism.” In a 2020 essay in the journal Publius, Utah State University political scientist Greg Goelzhauser and Indiana University public and environmental affairs professor David Konisky went so far as to argue that President Trump had descended into a “punitive federalism.”
A fight with California officials over environmental regulation is a good case study.
When Trump’s Environmental Protection Agency sought to weaken an Obama-era rule strengthening fuel economy standards for cars and light-duty trucks, California pushed back — striking a voluntary agreement with four automakers who agreed to adhere to higher standards. A few months later, Goelzhauser and Konisky write, the administration responded with a series of measures “seemingly motivated by retribution.”
The EPA yanked a federal waiver allowing California to pursue its own vehicle emissions reduction program. The Department of Justice opened an anti-trust investigation into the automakers who had struck the deal with state officials. The administration sanctioned San Francisco for its handling of three wastewater treatment plants and threatened to pull federal highway funds from the state. And it filed a lawsuit designed to scuttle California’s cap-and-trade climate compact with the Canadian province of Quebec, in a move California Governor Gavin Newsom called a “political vendetta.”
Concerns about Trump’s apparently vindictive brand of federalism also swirled around his crackdown on “sanctuary” jurisdictions that protected unauthorized immigrants and his distribution of pandemic aid — he seemed to favor governors who supported him and to punish those who did not.
“State versus state”
Trump was an extreme case. But even before he took office, the national and state governments had been drifting toward a more acrimonious relationship.
After President Obama signed the Affordable Care Act in 2010, several Republican-controlled states refused to expand their Medicaid programs despite generous subsidies from Washington. And GOP state attorneys general filed dozens of lawsuits against the administration on all manner of subjects. “I go into the office, I sue the federal government, and I go home,” the then-attorney general of Texas Greg Abbott told a Tea Party group in 2013, describing his typical day.
Democrats returned the favor during the Trump administration, with Massachusetts Attorney General Maura Healey ranking among the most aggressive litigators.
And we’re not just seeing the polarization of “vertical federalism” — state versus federal government. “We’re also seeing increasingly polarized horizontal federalism,” says Goelzhauser, the Utah State political scientist. “State versus state. You know, California and New York against Texas.”
Attorneys general from different states are squaring off against one another on big issues like health care and immigration. Governors and state legislators are doing the same. There is even a new breed of intrastate fight emerging.
Democratic mayors are sparring with Republican governors over pandemic restrictions. And in a case headed to the Supreme Court, North Carolina state lawmakers are arguing that they have the exclusive power to set election rules, independent of state court review of their constitutionality.
John Kincaid, a professor of government and public service at Lafayette College and an expert in federalism, says the roles of city, state, and federal government are increasingly blurring — and partisans don’t seem especially concerned about what the proper roles should be. They just want to find a venue where they can win on whatever issue they care about.
A friendly court. A friendly state legislature. In the best of times, a friendly Congress.
“We’re seeing a lot of forum shopping between the federal government and the states,” he says, “as people turn from one to the other.”
Having it both ways?
Critics of the Supreme Court see a bit of cynical forum shopping in its latest round of rulings.
One day, it found that a federal constitutional right to bear arms trumped a New York state law that placed sharp restrictions on carrying guns in public. The next day, it struck down a constitutional right to abortion and threw the issue back to the states. Support for federal power in one case, state power in the other.
Conservatives say that’s a willful misreading of the decisions. The right to bear arms is enumerated in the Constitution and is deserving of court protection, they say, while the right to abortion was read into the Constitution by unelected judges and must be read out.
But whatever the merits of those arguments, the larger trend is undeniable.
On issue after issue, our democracy is requiring a sort of guerrilla warfare mindset, where offensive forces seize the high ground wherever they can find it and strike — and defensive forces are compelled to be ever more agile and strategic.
Consider the Supreme Court’s decision this term to strike down a Maine law forbidding private religious schools to receive taxpayer dollars.
Legislators in that state knew which way the court was leaning before it even issued a ruling. And they made a clever end run in advance, amending the state’s antidiscrimination statute to forbid discrimination on the basis of gender identity and sexual orientation and applying the standard to all private schools seeking state funds — whether or not they are religious.
The change in state law effectively neutered the Supreme Court’s decision before it arrived, with the two religious schools at the heart of the case saying they wouldn’t accept state funds if it meant having to change how they run things or admit LGBTQ students.
Pro-abortion-rights states have to be just as adept.
A new era for state power and abortion
Before the court overturned Roe v. Wade, Connecticut lawmakers passed legislation shielding abortion providers in their state who perform the procedure for people from states where it is illegal. The measure forbids Connecticut authorities from providing information to out-of-state investigators or complying with extradition orders. And it allows providers who are sued for their role in an abortion to countersue in a Connecticut court. Massachusetts lawmakers are advancing similar legislation right now.
If these shrewd adaptations are admirable in their own way, they don’t make it any less difficult to watch the pitched state-by-state battle over abortion that’s underway.
It is undeniably unnerving to see a decades-old national ruling on such a sensitive issue fall away, leaving it to 50 separate state legislatures to fight their way to a new framework.
But if there is cause for hope in this fraught moment, perhaps it is that the Supreme Court’s decision to overturn Roe should provide a jolt for activists and city councilors and state legislators. Give them a newfound sense of power.
If they hadn’t fully realized how central their work is to our national life, they should now.