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The Second War Between the States has Already Started

The flashpoint of the next civil war won’t be slavery. It will be abortion. And it’s already here.

It’s a war that may never get to the point of armed conflict, but it will be no less hard-fought and bitter for all that.

The states are already lined up, more or less, the same way they were last time, which makes it hard to think well of the American South, which is now joined by much of the Midwest, and a lot of the northern border states. I’m sure there are good people in all these states. I’m sure there are even Democrats. But good people don’t get much traction in an electorate where the ignorant and apathetic are being brainwashed by the cruel and crazy.

The Dobbs decision has opened the door to a new era of state-to-state conflict, in which the laws of one state will be diametrically opposed to, challenged by, and possibly undermined by the laws of another state.

The war will be fought mostly in the courts, which will be tied up for years and years, sorting out the multi-jurisdictional disputes between and among governments at the federal, state, and local level. It will be government against government, lawyer against lawyer, company against company — a cavalcade of litigation stretching long into the future.

At stake in these disputes will be all the ways in which abortion laws are enacted or not, enforced or not, prosecuted or not, punished or not. It will be about which businesses can provide which abortion services to which customers in which states. It will be about companies turned inside-out trying to figure out how to offer their employees sane health insurance, without ending up in expensive lawsuits. It will be about who gets to define what’s a tort, what’s a crime, and where the lines between them get drawn.

Until an agreed-upon legal framework for abortion is finally settled we’ll be watching a free-for-all of people and organizations, all testing the limits of whatever laws go on the books of the various states.

In the meantime, virtually all activity surrounding the issue will occur in a limbo of semi-legality — legal in some places, illegal in others. Legal uncertainty will be the background hum of all abortion matters.

How aggressive will one state be in ignoring, flouting, or outright violating the laws of another state? What would the fallout from such conflicts look like? What happens when the courts of any given state are tilted ideologically? When “red “and “blue” courts clash, who resolves these disputes? How long will it take to resolve them? What happens in the meantime to the people who get ensnared by them?

Nothing about these new laws, whether pro-choice or anti-, will be clear-cut.

Yes, if you get a surgical abortion in Texas today, you will most likely have broken at least one Texas law.

But if you get a medication abortion in Texas, using pills ordered from New Jersey, supervised by a telemedicine provider in California, insured through your employer in Colorado, and defended pro bono by a top corporate law firm in New York, you may not know for years, or even decades, if you’ve broken any laws at all.

Furthermore, if you live in Missouri and decide to go to Illinois for an abortion, Missouri might put laws in place to prevent you from doing that, but Illinois will almost surely challenge those laws. Lawsuits will fly back and forth. It might get heated, tempers could fray, politicians will get involved, people could overreact. The disputes might never get fully resolved, the legal framework may never be fully established.

Which brings us to the curious case of Granite City, Illinois, which might just be the first of many “abortion boomtowns” caught in this legal limbo.

A blue-collar steel town, where the steel mills have long been in steep decline, Granite City has long been a destination for abortion-seekers. Situated right across the Mississippi River from St. Louis, Missouri, you can cross the river, get an abortion, and be home in time for dinner.

Which plenty of women did, even in the old days before Dobbs. They’d come from all over Missouri, whose abortion laws had grown increasingly onerous.

So for many thousands of women — not just in Missouri, but in neighboring red states, as well — Granite City was the closest place to get an abortion without being hassled by zealots. 

Over time, a small but viable business culture evolved around the clinics. Motels and restaurants grew used to serving women who would come to town, stay the night, then be gone the next morning. They rarely caused problems, and their business was welcomed.

Then came the Dobbs decision, and suddenly Illinois was the one state in the Midwest that offered total abortion access to anyone who wants it. And Granite City was right there across the border from hostile Missouri.

One clinic immediately tripled its business and can’t keep up with demand. New clinics are popping up all along the border. They will inevitably be followed by new restaurants, new hotels, new entertainments, and new jobs that need filling. Doctors and healthcare workers, lawyers and paralegals, tech professionals of all kinds will be moving into the neighborhood. They’ll need housing, schools, gym memberships, Ikea, Starbucks, and Whole Foods stores.

By now we’ve heard plenty of stories about abortion-seekers who can’t afford to travel. But we haven’t heard much about the ones who can, a soon-to-be-booming market. These are the many thousands of women who have the money they need, and are prepared to spend it on making the best of a bad situation. Local economies have been built on less.

Of course, not everybody’s happy about all this new business. Like so many blue-collar towns, Granite City went heavily for Trump, and there are plenty of locals who’ve done regular protests at the clinics over the years. To them, the abortion economy is what they call “death money.”

Still, the operative word there is “money,” which is about to start rolling into the community, for better or worse. And money has been known to change minds.

The big problem for Granite City is the uncertainty of it all. What happens if there’s a total national ban on abortion? Would the town’s economy disappear? Would it move underground? Or suppose abortion rights become universally protected? Does the town benefit from that? Or does it lose its competitive advantage as a go-to provider?

The point being that Granite City is now building an economy based on a shaky status quo. They’re living in a semi-legal no-man’s-land that will have Illinois and Missouri at each other’s throats — and in each other’s courts — for many years to come. And these are just two states.

With the Dobbs decision, an illegitimate and shockingly ignorant Supreme Court has brought on a stunning array of unintended consequences — not that we know what the intended ones were. But regardless of intent, that same court will now have to deal with all the real-world consequences of its malevolent arrogance.

This is a court that keeps recklessly ceding power to the states, leaving the states to fight it out amongst themselves. Which is exactly what is starting to happen, and it will likely get ugly.

So, in the absence of any real referee in this new war between the states, that same Supreme Court will now be asked to step in and rule on the vast number of staggeringly complex legal problems that didn’t exist before the court itself created them.

But no worries. We can be sure that all the wisdom, compassion, and judicial humility that went into creating those problems will now transition seamlessly into solving them.


For more on the Granite City story, see this WaPo article from this past July.

Comments

  1. I like your optimism, but I don't share it. The Civil War brewing right now has already turned violent more than once and it's about more than abortion. Making America great "again" speaks to some people about a time when things were better for their group. These folks are mostly either Southern and/or rural and they're in just about every state. They also have way more guns than their opponents. To a hammer, every problem is a nail. Buckle up!

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  2. Interesting article by Sara vowel in nyt. Our new civil war actually lacks geography. We ride the same bus, same food carts, same stores... the two sides are pretty well blended. One side is better armed though.

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  3. Red states will try to apply extra-territoriality and arrest women who travel for abortions in other states. This would be odd since it is a fundamental principle of these neo-fascists that States' right trump national law. So if they apply it, NY could send its national guard down to Mississippi and arrest anyone with a handgun on the basis they don't have a NY permit. And so on. The arbitor of interstate commerce and law is the US government; I don't see even the ultra right wind Supreme Court granting one state power over another in this manner.

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    1. I do; this court has clearly shown that it is perfectly willing to interpret the constitution to further the political goals of the right wing; throwing out the first half of the Second amendment, erasing the establishment clause of the First, and simply deleting the Ninth altogether. I honestly wonder if they're working from the same constiitution as the Country, and not, for example, the Constitution of the Confederate States of America...

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    2. I agree that the right wing judiciary is willing to bend and twist laws to meet their world views, but states rights are a fundamental part of right-wing political philosophy. Changing those rights, i.e. giving states extra-territoriality in other states) would also mean that Red state citizens would be subject to Blue state laws when "abroad" or even in their own states. This would effectively negate all states rights and probably undermine the Constitution entirely. It's a step too far for even the worst judge.

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  4. We are indeed soon going to find out that a system that allows 50 different versions of what needs to be the common law is not going to stand. This is only one of the many hopelessly flawed features of our written constitution, but one necessary to have the thing approved by 13 then-independent nations. That the states should all extend "full faith and credit" to each others laws is a pious hope, not a plan that will actually work if the differences are at all matters of conviction.

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