The Washington PostDemocracy Dies in Darkness

How the Supreme Court fractured the nation — and how it threatens to do so again

Abortion and America’s new sectional divide

The Supreme Court of the United States. (Matt McClain/The Washington Post)
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The midterm elections made one thing clear: There is a growing sectional divide in this country. The red-state-blue-state paradigm, a defining feature of our contemporary politics, has shifted in recent years, falling increasingly along regional lines, as the coasts shift to the left and the middle of the country moves right.

There is one issue that more than any other captures this political and cultural divide between Red and Blue America: abortion. With the new associate justice, Brett M. Kavanaugh, now in place, the question emerges: Will the Supreme Court upend the most controversial issue of our era?

It has done something very similar before. In 1857, the Supreme Court overturned a principle of constitutional interpretation that three generations of Americans had considered settled law. The decision involved slavery, the most contested issue of that era, and it triggered a political earthquake that culminated in the Civil War. In doing so, it raised profound questions about the power of the court in American democracy.

The case was brought by a slave named Dred Scott, who had been taken by his master into territory declared free by the Missouri Compromise of 1820. That compromise was built on a principle dating to the 1780s, affirming that Congress possessed the authority to ban slavery from federal territories. While states decided the issue of slavery for themselves, before statehood, Congress was the arbiter.

Scott lost his case. The Supreme Court ruled that Scott lacked standing to bring a suit, because he was a black man and, therefore, not a citizen in the required sense of the law. This part of the decision outraged advocates of racial equality. But it was the second part that caused even greater furor, provoking events that culminated in war.

The court’s majority, led by Chief Justice Roger B. Taney, declared that the Missouri Compromise had been unconstitutional from the start. Congress had no power to bar slavery from the federal territories, the majority ruled. Slaves were property, and to deny their owners the right to take them into federal territories deprived those owners of due process under the Fifth Amendment.

The opponents of slavery were appalled. Abraham Lincoln, a former congressman from Illinois and an emerging figure in the new, antislavery Republican Party, warned that the same logic that forced slavery upon the free territories might soon force slavery upon the free states. “A house divided against itself cannot stand,” Lincoln said. “I believe this government cannot endure, permanently, half slave and half free.”

Abolitionists, the radical wing of the antislavery movement, were particularly incensed. William Lloyd Garrison, founding editor of the Liberator, and other abolitionists had been calling for Northern secession from the Union, lest Northern freedom be corrupted by Southern slavery. John Brown, a militant in the abolitionist cause, took direct action by leading a squadron of commandos against a federal arsenal at Harpers Ferry, Va., with the aim of arming slaves and inciting them to a war for their liberation.

Southerners were shocked by Brown’s raid, deeming him and his followers nothing less than terrorists. And they were horrified when, after Brown’s conviction and execution by Virginia authorities, he was treated as a martyr by many in the North. The election of Lincoln as president in 1860 with the support of nearly all those who lionized Brown convinced most voting Southerners that their rights would not be secure within the Union. Eleven Southern states seceded, and the nation went to war.

Kavanaugh has given assurances that he considers the status quo on abortion, after the 1973 decision in Roe v. Wade, to be settled law. He may be perfectly sincere. But the Dred Scott case demonstrates that settled law can become unsettled overnight.

Abortion isn’t directly analogous to slavery. For one thing, it lacks the economic importance slavery had to the South. Yet striking similarities exist. Those who would outlaw abortion today are as convinced of the morality of their position as the abolitionists were of the morality of theirs. Compromise is equated with surrender to sin, just as it was for Garrison and his comrades.

Until recently, there was a crucial difference between the fight over slavery and that over abortion. Slavery was a sectional issue in a way abortion was not. Yet this is changing, as the South and central part of the country turn redder and the coasts more blue. The lessons of the 1850s become more pertinent than ever.

Suppose Roe is reversed, and the states are allowed to restrict abortion as they see fit. Red states reduce access to abortion, in some cases nearly eliminating it. Blue states maintain or even liberalize their existing laws. The red states proclaim themselves right-to-life, the blue states right-to-choose. Women seeking abortions travel or move to the blue states, leaving the red states redder still.

Having repealed Roe, opponents of abortion would be tempted to push for a further step: the restriction or outlawing of abortion nationwide. Just as Massachusetts abolitionists felt compelled to condemn slavery in Georgia, so anti-abortionists in Texas would feel conscience-bound to try to prevent abortions in California.

They might not succeed, but the effort alone would cause many Californians to ask themselves whether their liberties were safe any longer in a Union with such people. California’s economy would rank it fifth in the world if it were an independent country. Californians might conclude that they could stand on their own and vote to secede. Perhaps they would be joined by Washington and Oregon, adding Amazon, Microsoft and Nike to the economic heft of the Pacific republic.

What would happen then is anyone’s guess. Would the heartland fight to keep the left coast in the Union? Maybe not. It’s worth noting that when the South seceded in 1860-61, many Northerners, not all of them abolitionists, applauded its departure. Lincoln took the opposite view, but another president might have let the South go. In fact, another president did let the South go: James Buchanan stood by amid the first wave of secession.

But even if there were no war, the rending of the Union would have consequences only the boldest or most naive ought to contemplate with equanimity.

Taney didn’t intend to blow up the Union in 1857. He hoped instead to resolve the slavery question once and for all. The question was indeed resolved, but quite differently than Taney had expected, at the cost of several hundred thousand lives. The lesson for those now seeking a judicial remedy to the similarly fraught question of abortion is: Be very careful what you wish for.

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