The Changed Abortion Landscape and the Role of States in the New Republican Autocratic Order

by Neil H. Buchanan

What will happen when Republicans complete their anti-constitutional, anti-democratic, and anti-republican takeover of the federal government?  I have been addressing various aspects of that question over the last year or so, including in yesterday's new Verdict column: "A Strange Type of Federalism Awaits Us in Republicans’ Upcoming One-Party Autocracy," which was a prediction and warning about how federal, state, and local government relationships will change after Republicans have ended meaningful elections at the federal level.

In that column, I devoted only a small part of the analysis to the federalism aspects of reproductive rights.  Writing less than forty-eight hours ago, I (along with almost everyone) had not yet learned what the Supreme Court was going to do (or not do) about the Texas abortion-vigilante law.  After the release of the Court's shocking non-decision, Professor Dorf guided us through how that non-enjoined law could and should have been handled.  Although the five most conservative justices hid behind the excuse that they had no way to stop Texas's law, they most certainly could have done so, had they been sufficiently motivated.
One side note to all of this is that we can now set aside the belief that Chief Justice Roberts would prevail on his fire-breathing ideological compatriots and get them to act stealthily in overruling Roe.  I suppose it is still possible that, when the Court takes up the Mississippi 15-week abortion case this Fall, Roberts could still convince the others to be cagey and not explicitly end Roe.  They could, for example, say that Roe is still good law, but the threshold is now fourteen weeks -- or, in light of Texas's six-week cutoff, the Court could say that five weeks is the new Roe limit.

But why bother, now that Roberts' unruly group just went rogue and effectively ended abortion rights in any state where the (often heavily gerrymandered) Republican state government adopts Texas's law?  Republicans in Florida and South Dakota are already speeding toward that end, and so will others.  If the theory of only stealthily getting rid of Roe was political optics -- not wanting to make the people who inexplicably took Senator Susan Collins seriously (when she said that Roe would not be at risk) look like idiots, and thus not pushing even more voters away from Republicans -- that ship has now sailed.

That will play out soon enough, but here, I want to return to the federalism question, expanding on some points that I made in yesterday's Verdict column.  Big question: How long will Republicans allow Democrats to do things at the state level, in states where Democrats are still getting elected?  Easy prediction: Not long at all.

When I mentioned abortion in yesterday's column, I had already described how the Republicans' commitment to devolved federalist power -- so-called states' rights -- has never been anything but opportunistic on any policy question.  Even within that hailstorm of hypocrisy, however, their commitment to "letting the states decide" abortion's legality has always been a crock.

After the Court's midnight end-run allowing Texas's law to take effect, Republicans in general have not been crowing about it, perhaps hoping to retain some of that "end abortion but don't admit it" cover story that I described above.  Even Ted Cruz, the Texas senator who simply lives to gloat over wins and troll liberals, did not rush to the nearest camera to say something smarmy.
Even so, a Cruz spokesperson did tell HuffPost: "Sen. Cruz is proud that Texas is leading the charge to defend life.  Every life is a gift from God, and without life, there is no liberty.  The question of abortion should be left to the states."  This means, first, that Cruz is still fully committed to smarm, even when he is lying low.  More importantly, he is also repeating the lie that this should be a state-level issue.

As I noted in my column yesterday, however, that has always been nonsense: "[T]he self-styled federalist’s claim has been that this should be a state-by-state issue. If New York and California want to allow abortions within their borders, so be it; but Texas and Alabama should be permitted to go their own way.  [But] why would people who think that abortion is murder allow some states to legalize infanticide?"
How many nano-seconds will it take Cruz to decide that abortion is a federal issue, after Republicans are able to pass a federal prohibition that their packed courts will allow to stand?  Cruz took at least a short while to go from hating Donald Trump to being his eager toady, but not because he cared about looking like a hypocrite.  He took stock of his political future and realized that he could not continue to oppose Trump; but that was not immediately clear in late 2016 and 2017, so his transition took some time.
Here, however, Cruz and others in his camp will simply do what they did when asked about the hypocrisy of ramming through Amy Coney Barrett's confirmation.  Cruz was particularly blunt, telling interviewers that people could complain all they want, but because Republicans had the votes to do what they wanted to do (and to ignore what they had said about Merrick Garland's nomination), nothing could stop them.  And so it will be when Republicans want to outlaw abortion nationwide.  I honestly would not be surprised if Cruz has already written his speech favoring central government control of women's bodies.

Even so, abortion is only one policy area among many in which Republicans will be tripping over themselves to become uber-nationalists.  I recall a surprisingly tense moment during my clerkship, when I was having lunch with a Reagan-appointed judge and his four clerks.  This was 2002, when the Republican Party was much less radicalized than it is today.  Moreover, this particular judge was rightly known to be a level-headed conservative who was no extremist.
As the pleasant conversation at the table wound its way through various topics, someone mentioned that the Democratic Attorney General of New York State had done something to frustrate a Bush Administration policy.  I then laughed and said that I had heard that AG on TV a few days before, and he was thanking Republicans for having so carefully made the case that state AG's should be able to fight the federal government.  His job was a lot easier, he said.

Even though my lunch companions were Republicans, I offered the story in the expectation that the judge or one of the clerks would offer a forced smile and say something like: "Yeah, sometimes those unintended consequences can be painful."  Instead, I was met with icy stares and an extended silence that only ended when someone awkwardly changed the topic.

My point is not only that these people lacked self-awareness and a sense of humor.  It is that they were absolutely furious about the idea that somehow liberals would be able to take advantage of the supposedly neutral principles that conservatives proudly proclaimed.  Like conservative Republican before and since, they were not interested in federalism as an independent value, any more than they are committed to economic efficiency or textualism and originalism.  States' rights go by the wayside without a second thought, whenever it is convenient.

Because I find it useful to think about extreme possibilities, I spent the latter part of yesterday's Verdict column picking up on a point that I had tossed in as an afterthought in a different Verdict column earlier this week.  In the earlier column, in trying to explain that there are some things that Democrats can do while still in power that Republicans will not be able to reverse, I focused on what would happen to Washington, D.C., if Democrats were to turn it from a district into a full-fledged state, sending representatives to the U.S. House and Senate.

There is no need to rehash the constitutional argument here, but the short version is that I was confronting the Constitution's notable silence on the question of whether states can be turned into non-states.  I offered the substance-over-form argument that Congress could not do that, because if it were able to do so, it could then turn around and do something -- split up or reorganize existing states, without the state governments' consent -- that is explicitly prohibited by the Constitution.  It was an argument of the type familiar to any person trained in the law: Congress cannot do X, because then it could indirectly do Y, which it cannot do.

Yesterday's column then focused on what I had intended as a throwaway absurdity in the earlier column: What if, instead of de-statifying a state as a means of evading an explicit constitutional prohibition, a future Republican Congress started de-statifying states, full stop?  That is, just because de-statifying could be part of an unconstitutional workaround, what if it is not used in that way?  If D.C. can be reverted to district status just by purporting to do it for its own sake, would that make it all kosher?
I think the answer to that last question is clearly no, but what if Republicans and their courts decided otherwise?  And more importantly, how long would it then take Republicans to notice that they could de-statify every state that displeases them?  The Constitution says that Congress, acting on its own, cannot break up Connecticut into Eastern and Western Connecticut; but could it simply declare that all of New England is henceforth a territory with status equivalent to Guam or Puerto Rico?
Can states be relegated, a la the English Premier League's football teams?  Maybe Republicans could set up a system in which relegated states can prove their worthiness for promotion by electing Republican governments.  Nothing in that scheme violates the bare text of Section 3 of Article IV of the U.S. Constitution, as far as I can see.

And I will add yet another extreme possibility.  Republicans could start to create more Republican states by carving up existing Republican states.  There have been some proposals to split up the blue state of California over the years, one of which was the subject of a good Verdict column in 2017 by Illinois Law's Dean Vikram Amar.  There, however, a major part of his analysis had to do with whether California itself would want to be trisected, and how it must manifest that consent.

If Texas, Florida, or any other Republican-dominated state were willing to be split up, what would stop them -- given that they would surely have the blessing of their federal-level cohorts?  Republicans could then engage in what would amount to a gerrymandering of the Senate, creating as many states as they desired, so long as the new states could be counted on to elect Republican senators.

To anyone who might respond to this by saying, "Oh, come on!  This is too far out there, even for you," I can only say that all of our experience over the last five, twenty, and even forty years should tell us that nothing is too far out there.  Things that were once unimaginable (congressional Republicans abetting a president's efforts to end congressional oversight of the executive branch, as only one example) are now routine.  If the text of the Constitution allows it (or if the courts can invent ways to pretend that the Constitution allows it), nothing stands in Republicans' way.

In the end, however, they might not bother taking some of these more extreme actions, simply because there is no reason to do so.  The Senate already over-represents Republicans, and Democrats will have to draw the proverbial inside straight to hold the majority there in the 2022 midterms.  The House is going to turn even more counter-majoritarian than it already is, both through gerrymandering and voter suppression.  Republicans will have a lock on the White House starting next term, if not sooner.  (Some have already talked about impeaching Biden.)

Maybe it will not be worth it for Republicans to carry out all of the crazy ideas that I have laid out here.  But these extremists certainly do not lack energy.  They are, for example, trying to recall not just California's governor but dozens of other Democrats who won legitimate elections.  Why not pull out all the stops?