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Nicolais: Supreme Court abortion case could have far wider political implications

If the court adopts a more deferential position to states’ rights, it could set in motion a cavalcade of state laws further dividing the country

The U.S. Supreme Court seems poised to further divide our country after oral arguments over Mississippi’s ban on abortions after 15 weeks. 

It will be months before an opinion officially issues and there could be a surprise outcome, similar to the LGBTQ equality case Bostock v. Clayton County penned by Justice Neil Gorsuch. But the comments and questions made by the conservative faction of the bench hint at upholding Mississippi’s law and potentially overturning Roe v. Wade itself.

Such a result will deepen the already considerable political rift across the country. And not just because of the hot-button nature of the abortion debate. 

Mario Nicolais

The core of the legal arguments rest on states’ rights, federalism and deference. If the Supreme Court finds no constitutional support for the penumbra of privacy that served as the right for women to have an abortion under Roe v. Wade, states will no longer be bound by the Supremacy Clause to allow abortions. 

In turn, each state legislature will be free to decide what, if any, restrictions to place on abortion. In theory, it will be an exercise of the “laboratories of democracy” concept coined by Justice Louis Brandeis nearly a century ago when he wrote, “a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

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In the wake of an opinion overturning Roe v. Wade, though, Brandeis’ idyllic view of government will likely be bastardized by the bitter partisanship that has enveloped our country. An avalanche of red states across the country will race toward the most restrictive anti-abortion laws. Blue states will push through legislation to shore-up pro-abortion rights. 

Worse still? The cavalcade will occur right in the middle of the mid-term elections and further separate states on opposite sides of the political aisle. The case would become a battle-cry for both camps rallying their respective bases.

And that is just the beginning.

The potential impact could be felt across disparate sectors of the law as well. For example, a ruling in favor of Mississippi could bode well for Republican-led states implementing more stringent voting rights laws. The Tenth Amendment and its reservation of power to individual states was a staple of voter suppression across the South for nearly a century. 

And just as the U.S. Department of Justice has begun to challenge restrictive voting laws, like those recently adopted in Georgia, it may find itself hamstrung by a Supreme Court decision emphasizing state sovereignty. Depending on the rationale employed, it could certainly portend similar deference in voting rights cases.

The outcome would lead to similar polarity in laws governing voter access, protection, counting and review. That could lead to red states rushing to enact laws that clamp down on access to the ballot, and blue states passing legislation to pre-empt such challenge.

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Such scenarios do not resemble individual states setting up a multitude of civic experiments as much as coalitions of armies digging trenches. Every state will be expected to pick a side, arm itself and train its aim at those across the divide.

And the people stuck in the middle, people attached to neither side, will be condemned to live in No Man’s Land. They will be caught in the middle of political, cultural, social and economic crossfire between increasingly bitter party factions.

The Supreme Court’s decision over abortion and the rights inherent to it will have a profound impact on the political life of our country. But the rationale it employs could be even more consequential and disruptive. That seems to be why Chief Justice John Roberts advocated for a narrower, more incremental approach.

Unfortunately for the Chief, few seem to be listening. And he may well find his judicial philosophy shredded by the same crossfire threatening so much of American life today.


Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq


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