Why decide abortion at the state level?

Why not counties? Why not individuals? What's magical about states?

With Roe v. Wade overturned, the question of the legality of abortion is handed to the states. However, American cultural variation is complex with multiple scales of who believes what, where & when, and this mosaic of belief changes over time from our founding and space, from households to states. If we take a full look at American pluralism, past and present, we identify traditions unconsidered and unrepresented by the court’s majority in Dobbs, traditions whose beliefs and values are excluded from being granted the honor of defining unenumerated rights.

Beyond the legal and sociological challenges, a view of American pluralism makes me wonder whether there may be a more practical solution to abortion law. Specifically, given the deep and persistent differences of belief and tradition on abortion, why are states the right scale at which this should be decided? Could we reconcile this generational debate on abortion by regulating it at the county level?

Dobbs v. Jackson and the mad dash for state-level abortion laws

In overturning Roe v. Wade, the Dobbs v. Jackson majority opinion argued three points. First, they said the fourteenth amendment’s protection of “liberty” does not specifically protect abortion. Second, they said that the right to privacy or abortions is not an established right in the nation’s traditions warranting protection under due process, in other words that the right to abortion was not an “unenumerated right” because the justices argue it is not rooted in the nation’s tradition & history, allowing the court to say this right is not protected by the 9th amendment. Finally, the majority argues that the right to abortion is not covered by broader, entrenched rights established by other precedents, allowing them to overturn just Roe v. Wade and not other more deeply rooted rights such as one’s right to bodily autonomy or the right to their own “concept of existence” i.e. their freedom of religion.

In other words, the court says abortion isn’t listed in the first 8 amendments in our constitution. If this isn’t covered by the first 8 amendments, we also have a 9th amendment that gives rights not listed (‘unenumerated’) in the bill of rights to the people, and then we have 10th amendment that grants powers not listed in constitution to the states.

Since the Dobbs bombshell dropped, states have rushed to pass legislation along party lines. Some states had trigger laws that went into effect, banning abortions immediately upon the repeal of Roe v. Wade. Other states are not only legalizing abortions, but threatening to limit interstate commerce with states that outlaw abortions. Far from healing our country or fixing anything, the Supreme Court’s decision has granted a critical, contentious issue to states, creating regional divides on a critical issue of human rights the likes of which we haven’t seen since slavery was left to states. And we all know how well that worked out.

Source: People.com

As someone raised in a minority-majority state, I have a deep love of American pluralism. I know we are different, and that’s okay. However, the opinion in Dobbs ignored our wildly different traditions, overturned this contentious precedent and by the 10th amendment, granted the power to regulate abortion to the states and now the states are fighting it out.

My wife and I live in Montana. We’re in our 30’s and have stable jobs, and so now we’re nervously entertaining having a child now, having survived a Great Recession, PhDs, and a pandemic. However, while we and the majority in our community of Bozeman support the right to access abortions, the governor of Montana believes God created humans 5,000 years ago (an easily falsifiable claim in a court of law), and through his personal beliefs to which he’s entitled he and a GOP majority of state legislators believe that life starts at conception. He has called a special session to regulate abortion in our entire state. If he outlaws abortions, which in his dreams would include outlawing abortions even when the mother’s health is at risk, then my wife and I would have to drive 6 cruel and painful, possibly even fatal, hours to Washington state to seek medical care we may need in the year ahead.

As my wife and I plan whether/if/how we can live in a state that outlaws abortion as we nervously try to have a child, and as we sit together angry at the cruelty and medical ethnocentricity of the Governor who believes disprovable fantasies about humans walking with dinosaurs, two questions are screaming in my mind, one legal and one practical. The legal question is: whose traditions matter when we “unenumerated rights” protected by the 9th amendment? The practical question is: why states and why not counties?

The unequal protection in the court’s choice of “Our Nation’s Traditions”

We’ve have argued about abortion for over 50 years and since 1975 support for abortions to be legal in any case has gone up from 22% to 36%. Meanwhile, support for abortion to be illegal in all circumstances has, like Christianity in America, declined - while 21% of respondents in 1975 wanted abortion to be illegal in all circumstances in 1975, only 13% want abortion illegal in all circumstances by 2022.

I bring up these numbers because it relates to what, exactly, we consider to be the “nation’s traditions”. Sociologically, traditions are beliefs and behaviors passed down within a group or society, and our large, pluralistic nation has many groups. Different people in our nation have different traditions, from New Yorkers having the tradition of not talking on the subway to the Black community’s traditions of celebrating Juneteenth and Native Americans having traditional ecological knowledge and ceremonies. The majority of our nation alive today has inherited from their parents the tradition of Roe, the belief that abortion should be legal in some or all cases, and the majority of Americans alive today have spent their entire lives living with the tradition that a woman’s right to choose was protected by the fourteenth amendment. Yet, the traditions of Americans alive today were not considered in the court’s choice when deciding “Our Nation’s Traditions”.

The majority opinion took an originalist position in arguing for a peculiar - and, in its biases, revealing - interpretation of what exactly constitutes our “nation’s traditions”. Specifically, the court draws from a set of precedents to argue that a tradition must be “deeply” rooted for it to be protected as an unenumerated right, which makes us ask - what do you mean by “deeply rooted”? By “deeply rooted”, the court argues that a tradition must go back to the founding of our nation or before. In other words, the traditions of Roe held by most people alive today are less relevant than the traditions of people who died 200 years ago, and so by “Our Nation” the Supreme Court’s originalism is prioritizing the perceived traditions of people long dead over the very different traditions of people that make up our nation today. Furthermore, as surely as the founders had different opinions and beliefs so too did Americans 200 years ago have different traditions, and so the court’s choice of which traditions 200 years ago are “deeply rooted” reveals a cultural bias and white-washing of US sociological history.

Since our nation’s founding and even prior, we have been a pluralistic country composed of many people from many cultures. Since our founding we have expanded to incorporate new territories and new people, welcoming and absorbing many more people from many more cultures who are slowly comprising the majority of people alive today. To give some numbers, around the time of the constitutional convention there were about 4 million people in the United States’ 13 colonies, there were 760,000 Black people and approximately 600,000 Native Americans inhabiting present-day United States (that number was reduced to 250,000 after the genocide organized by the Anglo-saxon people whose traditions took priority in the court’s sampling of bast cultures).

In choosing examples of which traditions are “our nation’s”, the majority opinion admired Timbs v. Indiana, a case that relied on “deeply rooted” traditions dating back to the Magna Carta. The Magna Carta, however, written in England, and not all people who were in America at and before our founding were from England. Today, only 52% of Americans identify as “White”, and the rising majority of non-white Americans comprising “our nation” today trace their ancestry, their traditions, to countries and peoples that had nothing to do with the Magna Carta. The criterion for protection under Polko v Connecticut (1937) was “a ‘principle of justice’ so rooted in the traditions and conscience of our people as to be ranked as fundamental” (emphasis added).

All of the precedents loved by originalists as they attempt to define “our nation’s” traditions focus exclusively on a subset of people - white, landowning males from England - who died 200 years ago. While our pluralistic nation has hosted a changing diversity of people throughout its long history, the court centers Europeans’ traditions at the exclusion of non-Anglo people alive at the time of our founding, and the exclusion of the non-Anglo majority alive today whose ancestors arrived to or were absorbed by the colonial Anglo expansion of the United States.

The “nation’s traditions” criterion for “deeply rooted” rights to be covered by the 9th amendment has been weaponized by originalists to violate the 14th amendment rights for “equal protection of the law” of people alive today whose cultures were not equally protected in deciding which traditions are “our nation’s”. The majority’s justices are an improbably uniform set of Christians who have looked at our long and complicated history of many traditions and cherry-picked the traditions that align with their strongly held, contemporary Christian beliefs. With 35% of Americans identifying as Christian, the odds of drawing 5 Americans at random and all of them be Christian are 1 out of 200. The odds that all 6 justices appointed by Republican presidents would be Christian if they drew social security numbers out of a hat would be 1 out of 550. What are the odds that this improbably unrepresentative group would go on to define “our nation’s traditions” based on the subset of traditions held by Christians at the time of our nation’s founding, at the exclusion of other people who existed then and, more importantly, at the exclusion of the ancestors of those in our pluralistic society who exist today?

Did the Supreme Court’s majority, by cherry-picking as “deeply rooted” those traditions they share but others don’t, violate the 14th amendment protections of non-Anglo and non-Christian US citizens? Are they excluding 1776 Black people’s traditions because they were slaves, or Native Americans’ traditions across contemporary US because those people were not yet subjected to genocide and colonialism?

If we’re being sociologically honest, it may not be possible to define “Our nation’s traditions” in any objective way, and if we allow subjectivity in this decision then there is a major risk of cultural biases in which traditions the court chooses are “Our Nation’s". I don’t see the Supreme Court granted the power to choose which traditions are deeply rooted in the constitution, and their choice appears to violate the equal protection clause for people whose traditions were sidelined in this decision.

Under the Supreme Court’s precedent in Dobbs, the traditions of Native Americans, of Native Hawaiians, of descendants of formerly enslaved people, of Hispanics in lands that used to belong to Mexico, and all other people from all other places whose ancestors immigrated to and became citizens of the United States will never matter in our protection of unenumerated rights. Mormons, whose religion was founded in 1820, are excluded from consideration. If our nation lasts 2,000 years of cultural evolution from now, the originalist arguments for “deeply rooted” traditions will still be locked in time. Had we passed our constitution 20,000 years ago, the “deeply rooted” traditions would be those that we share with the now-extinct Neanderthals.

The dissenting opinion made a related objection to the constitutional methods used by the majority. In dissenting, they note:

”As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it. Our law in this constitutional sphere, as in most, has for decades upon decades proceeded differently. It has considered fundamental constitutional principles, the whole course of the Nation’s history and traditions, and the step-by-step evolution of the Court’s precedents. It is disciplined but not static. It relies on accumulated judgments, not just the sentiments of one long-ago generation of men (who themselves believed, and drafted the Constitution to reflect, that the world progresses). And by doing so, it includes those excluded from that olden conversation, rather than perpetuating its bounds.”

In other words, the dissenting opinion recognized that originalism excludes everyone and everything, all traditions and precedents, since a time long ago when a law was written. This objection to originalism is slightly different than my sociological objection to the process of choosing “traditions”. The dissent presumes there may exist traditions that are universal or somehow identifiable for us to decide what is and is not an unenumerated right protected under the 9th Amendment. However, if we take an honest sociological look at the United States, whether in 1776, 1868, or 2022, the people of the United States come from different cultures and traditions.

In Dobbs, I argue the court’s limited interpretation of which traditions define unenumerated rights protected under law is a violation of the 14th amendment rights of contemporary Americans. Furthermore, the court introduces a contradiction in our entire constitution, a contradiction that persists under an originalist view. The 9th amendment - an amendment that was essential to the adoption of our constitution - freezes our unenumerated rights in time for all eternity, regardless how our country’s culture and traditions change. Some founding fathers worried that listing rights in the Bill of Rights would result in the non-existence of any rights they forgot to list in the rushed constitutional convention, so they added the 9th amendment saying unenumerated rights belong to the people. “The People” the founding fathers mentioned were “citizens of the United States'“ which, originally, were the people alive in 1776. However, our government “by the people, for the people” clearly sees “The People” as those alive today.

Who are “the people” protected under our constitution? “The people” of 1776, or “the people” today? Was it the founding fathers’ original intent that the Constitution define “the people” as only those alive in 1776?

Why the States?

Because the Dobbs opinion argues the right to abortion is not enumerated in the constitution, and nor is the power to regulate abortions enumerated in the constitution, they have declared that the 10th amendment grants the power to regulate abortions to the states.

Here, however, we have to ask a more practical question. I don’t argue with the definition of a state, but rather I wonder if, practically, why are states the magical level of organization which should have the power to determine the legality of certain medical procedures? Especially in light of the contentiousness of the abortion debate, the complete stalemate where further deliberation is unlikely to change minds, and in light of how sometimes such contentious issues, left to states, can lead to civil war, we have to ask whether or not there are ways to lower the pressure, to represent our divergent beliefs and values.

What if, instead of having a patchwork of abortion laws at the state level, we let counties decide? Counties are smaller, they are more homogeneous, and - thanks to gerrymandering - they can concentrate like people into similar districts. Every state has blue counties and red counties, and counties are the node of government representation for many personal and medical matters from schools to public health departments.

For a useful example, consider the prohibition. Some people have strong religious objections to the consumption of alcohol, and in the early 1900’s a bunch of Christians with a strong adherence to biblical doctrine brought on the Prohibition with the passage of the 18th amendment. The prohibition of alcohol consumption by a religious minority was, however, unrealistic and unpopular and had the intended consequence of bootlegging, a black market for liquor, and possibly providing a boost for organized crime. The prohibition didn’t last long, and a few years later the 21st amendment repealed the 18th amendment. Like the right to an abortion, the power to regulate alcohol went from being an amendment in the constitution to being an unenumerated power handed off to the states.

Like abortion, changing the federal policy did not change the deeply rooted cultural differences on whether or not it should be legal to consume alcohol remained. Rather than create a patchwork of strong policies at the state level, however, most states kept alcohol legal. Some Christians who still deeply believed alcohol consumption was impious also deeply desired laws more conducive of their religious desires for a pious community. Christians mobilized for votes at county elections, succeeded in passing laws at the county level, and established dry counties primarily in heavily white Christian counties in the South. The right to consume alcohol was retained while counties regulated the sale of alcohol.

Dry counties in the US (source: Wikipedia) with no (blue), some (yellow), or total (red) restrictions on the sale of alcohol.

What would happen if we punted the question of abortion not to states, but to counties? Let’s imagine that the severity of restrictions on the medical “sale” of abortions to patients were similar to the 2020 US election results below.

If blue counties allowed abortions, then most people who believe strongly that abortion should be legal would have access to abortions, and conversely abortions can be outlawed in areas inhabited by most people who believe strongly that abortion is impious or immoral (both subjective beliefs derived from their religious views on life).

From a public health perspective, this would still cause major problems for abortion access and safety in many large, red swaths of the country. As such, though, it would also concentrate the harms of unsafe abortions in communities that support outlawing abortion. Communities will then be forced to cast their vote not for the abortion access of distant people whose sexual ethics they may abhor, but about abortion access of their own communities. Communities across Texas, Oklahoma, Nebraska, Arkansas, and Missouri will have to decide their own laws on topics like fatal ectopic pregnancies, rapes of women in their churches, and the entire range of scenarios women face that raise the abortion question at different stages of pregnancy. If red communities - of which 50% will also be women - remain firm in their belief that these risks are worth the piety of having no abortions near them, they are free to do so and others within the community are free to travel to nearby points of access much like citizens of dry communities can still buy alcohol elsewhere.

This compromise might appeal to many. Liberals can have access to abortions in their communities, including in many black, Native, and historically marginalized communities whose traditions weren’t represented in the SCOTUS decision. Conservatives can self-govern their communities. Like any compromise, nobody gets everything they want - liberals would have to accept some counties outlawing abortions (and probably avoid traveling through or having sex with people in those counties), and conservatives would have to accept that not everyone believes the Bible’s thesis that life starts at conception. These setbacks that both sides have to accept, however, are the same setbacks both sides have to accept if we regulate abortions at the state level - states like California will legalize abortion and others will outlaw it in ways liberal Californians find heinous.

However, by shifting policy to the county level, we focus the question of abortion to a much more local scale, to our communities, and blue urban bubbles in red states - like Bozeman, Montana, where I live - can still have laws that represent them. The injustice of gerrymandering becomes less so - the concentration of registered Democrats into a few counties with massive vote margins will all but ensure those counties get the abortion policies the majority of their citizens prefer, and conversely the gerrymandering in New York will enable conservative strongholds in that state to have abortion policies that represent them. People within counties that outlaw abortions will have greater access to the medical care they desire than they would under state prohibitions on abortion, and this can greatly reduce the social tension introduced by prohibitions. Like dry counties, we might think it’s weird when we drive through counties with different rules, but because it’s easy to get the services we want somewhere else we won’t care nearly as much.

The problem with abortion, why it is so contentious and unresolved in our country, is that we believe different things. We’re not going to agree anytime soon. My arguments about the SCOTUS ruling will not change an originalist’s mind or the mind of the improbable Christian majority of justices who made the decision.

However, if we’re going to accept that some places have legal abortions and others don’t, why don’t we regulate abortions at the county level? This can take the heat off of governors by passing the hot potato of abortion law to counties, and counties, being more smaller and uniform, may be able to host actual conversations between actual people to find policies that better represent the communities therein.

I disagree with the Supreme Court’s decision on Dobbs, as the decision represents an improbable Christian majority of justices cherry-picking traditions to greatly limit which rights are protected by the 9th amendment, and this judicial approach violates due process by ignoring minorities’ 14th amendment rights to equal protection, including the protection of considering their traditions’ unenumerated rights. Maybe that paves a path to overturn Dobbs in favor of contemporary America’s more pluralistic traditions.

I disagree with Dobbs as strongly as many Christians disagreed with Roe. Our country has argued about this for my entire life, trying to convince one-another by arguing about what constitutes the start of life, by holding subjective beliefs that life begins at conception and showing pictures of fetuses while neglecting the stories of the moms & dads, or by telling the stories of dying moms and deadbeat dads while holding similarly subjective beliefs that life - and one’s protection under the Bill of Rights - begins later. We are going nowhere but downwards and at each other’s throats with this discussion.

So, while I lodge my objections to Dobbs, I also propose a solution so we can hopefully move on and tackle other important issues. If we don’t regulate abortion at the level of the federal government, then let’s also not regulate it at the level of states. Let’s be deliberate in the scale of our action and make these decisions of pregnancy public health policy at the level of the county. At the very least, regulating abortions at the county level can ensure public health policy is better able to solicit participation and engagement of the people who live in the same community, providing Americans more power over the laws of their community that is more likely to share their beliefs and values.