Heather Cox Richardson | Letters from an American

May 1, 2024

Today, Florida’s ban on abortions after six weeks—earlier than most women know they’re pregnant—went into effect. The Florida legislature passed the law and Florida governor Ron DeSantis signed it a little more than a year ago, on April 13, 2023, but the new law was on hold while the Florida Supreme Court reviewed it. On April 1 the court permitted the law to go into operation today. 

The new Florida law is possible because two years ago, on June 24, 2022, the Supreme Court  overturned the 1973 Roe v. Wade decision that recognized the constitutional right to abortion. In Dobbs v. Jackson Women’s Health Organization, the modern court decided that the right to determine abortion rights must be returned “to the people’s elected representatives” at the state level. 

Immediately, Republican-dominated states began to restrict abortion rights. Now, one out of three American women of childbearing age lives in one of the more than 20 states with abortion bans. This means, as Cecile Richards, former president of Planned Parenthood, put it in The Daily Beast today, “child rape victims forced to give birth, miscarrying patients turned away from emergency rooms and told to return when they’re in sepsis.” It means recognizing that the state has claimed the right to make a person’s most personal health decisions. 

Until today, Florida’s law was less stringent than that of other southern states, making it a destination for women of other states to obtain the abortions they could not get at home. In the Washington Post today, Caroline Kitchener noted that in the past, more than 80,000 women a year obtained abortions in Florida. Now, receiving that reproductive care will mean a trip to Virginia, Illinois, or North Carolina, where the procedure is still legal, putting it out of reach for many women. 

This November, voters in Florida will weigh in on a proposed amendment to the Florida constitution to establish the right to abortion. The proposed amendment reads: “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.” Even if the amendment receives the 60% support it will need to be added to the constitution, it will come too late for tens of thousands of women.

It is not unrelated that this week Texas attorney general Ken Paxton, along with other Republican attorneys general, has twice sued the Biden administration, challenging its authority to impose policy on states. One lawsuit objects to the government’s civil rights protections for sexual orientation and gender identity. The other lawsuit seeks to stop a federal rule that closes a loophole that, according to Texas Tribune reporter Alejandro Serrano, lets people sell guns online or at gun shows without conducting background checks.  

In both cases, according to law professor and legal analyst Steve Vladeck, Paxton has filed the suit in the Amarillo Division of the U.S. District Court for the Northern District of Texas, where it will be assigned to Judge Matthew Kacsmaryk, the Trump appointee who suspended the use of mifepristone, an abortion-inducing drug, in order to stop abortions nationally. 

Last month the Judicial Conference, which oversees the federal judiciary, tried to end this practice of judge-shopping by calling for cases to be randomly assigned to any judge in a district; the U.S. District Court for the Northern District of Texas says it will not comply. 

And so the cases go to Kacsmaryk, who will almost certainly agree with the Republican states’ position.

Republicans are engaged in the process of dismantling the federal government, working to get rid of its regulation of business, basic social welfare laws and the taxes needed to pay for such measures, the promotion of infrastructure, and the protection of civil rights. To do so, they have increasingly argued that the states, rather than the federal government, are the centerpiece of our democratic system. 

That democracy belonged to the states was the argument of the southern Democrats before the Civil War, who insisted that the federal government could not legitimately intervene in state affairs out of their concern that the overwhelming popular majority in the North would demand an end to human enslavement. Challenged to defend their enslavement of their neighbors in a country that boasted “all men are created equal,” southern enslavers argued that enslavement was secondary to the fact that voters had chosen to impose it.

At the same time, though, state lawmakers limited the vote in their state, so the popular vote did not reflect the will of the majority. It reflected the interests of those few who could vote. In 1857, enslaver George Fitzhugh of Virginia explained that there were 18,000 people in his county and only 1,200 could vote. “But we twelve hundred…never asked and never intend to ask the consent of the sixteen thousand eight hundred whom we govern.”State legislatures, dominated by such men, wrote laws reinforcing the power of a few wealthy, white men. 

Crucially, white southerners insisted that the federal government must use its power not to enforce the will of the majority, but rather to protect their state systems. In 1850, with the Fugitive Slave Act, they demanded that federal officials, including those in free states, return to the South anyone a white enslaver claimed was his property. Black Americans could not testify in their own defense, and anyone helping a “runaway” could be imprisoned for six months and fined $1,000, which was about three years’ income. A decade later, enslavers insisted that it was “the duty of the Federal Government, in all its departments, to protect…[slavery]…in the Territories, and wherever else its constitutional authority extends.”

After the Civil War, Republicans in charge of the federal government set out to end discriminatory state legislation by adding to the Constitution the Fourteenth Amendment, establishing that states could not deny to any person the equal protection of the laws and giving Congress the power to enforce that amendment. That, together with the Fifteenth Amendment providing that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” Republicans thought, would stop state legislatures from passing discriminatory legislation.

But in 1875, just five years after Americans added the Fifteenth Amendment to the Constitution, the Supreme Court decided that states could keep certain people from voting so long as that discrimination wasn’t based on race. This barred women from the polls and flung the door open for voter suppression measures that would undermine minority voting for almost a century. Jim and Juan Crow laws, as well as abortion bans, went onto the books.

In the 1950s the Supreme Court began to use the Fourteenth Amendment to end those discriminatory state laws—in 1954 with the Brown v. Board of Education of Topeka, Kansas, decision that prohibited racial segregation in public schools, for example, and in 1973 with Roe v. Wade. Opponents complained bitterly about what they called “judicial activism,” insisting that unelected judges were undermining the will of the voters in the states. 

Beginning in the 1980s, as Republicans packed the courts with so-called originalists who weakened federal power in favor of state power, Republican-dominated state governments carefully chose their voters and then imposed their own values on everyone. 

Just a decade ago, reproductive rights scholar Elizabeth Dias told Jess Bidgood of the New York Times, a six-week abortion ban was seen even by many antiabortion activists as too radical, but after Trump appointed first Neil Gorsuch and then Brett Kavanaugh to the Supreme Court, the balance of power shifted enough to make such a ban obtainable. Power over abortion rights went back to the states, where Republicans could restrict them.

Trump has said he would leave the issue of abortion to the states, even if states begin to monitor women’s pregnancies to keep them from obtaining abortions or to prosecute them if they have one. 

Vice President Kamala Harris was in Jacksonville, Florida, today to talk about reproductive rights. She put the fight over abortion in the larger context of the discriminatory state laws that have, historically, constructed a world in which some people have more rights than others. “This is a fight for freedom,” she said, “the fundamental freedom to make decisions about one’s own body and not have their government tell them what they’re supposed to do.”