Justice Brett Kavanaugh had barely settled into his Supreme Court seat last fall before many states began focusing on the possibility of overturning Roe v. Wade, the 1973 case that legalized abortion. In his confirmation hearing, the conservative Kavanaugh called the case an “important precedent,” but 15 years earlier he had written that the Supreme Court “can always overrule” precedents. Anti-abortion campaigners immediately saw these statements as creating a crack big enough for a successful challenge to Roe.
Ten months later, Alabama has the nation’s toughest abortion ban, with new provisions that make abortions illegal anytime after a fetal heartbeat is detected -- often at about six weeks, before many women even know they are pregnant. Georgia, Kentucky, Mississippi and Ohio have gone down a similar road. Of course, all these laws will be unenforceable unless Roe v. Wade is overturned. But for the first time in a long time, that seems like a possibility.
It would be a fascinating bank shot, from a handful of Republican-led state legislatures, through the red velvet curtains of the U.S. Supreme Court, to a new precedent that would remake national policy. Indeed, that’s the whole point. Conservatives in these states are creating legislation deliberately designed to provoke judicial review at the highest level.
The question is whether the red states leading the charge have gone too far to advance the agenda from the right. The Supreme Court doesn’t like to be backed into a corner, and the justices often prefer to pick their way carefully to new precedents rather than take a single big leap. That’s especially true of Chief Justice John Roberts, who has expressed concern about the growing politicization of the court. He’s nervous about the public debates discussing the court’s “partisan balance,” and he’d likely be especially reluctant to tee up a big decision on whether to reverse Roe in the middle of the 2020 presidential campaign. So Alabama’s law might be the wrong case at the wrong time for conservatives, and it’s certainly fired up the liberal base in blue states across the country.
While conservatives ponder whether they are making the right moves on abortion, state officials on the left are struggling with a similar set of challenges. They’re fighting their war on the turf of environmental policy. Under Trump, the Environmental Protection Agency (EPA) has worked to unwind a generation of tough federal environmental regulations, and that’s fueled an aggressive countermovement in more than a dozen states. Hawaii and New York have banned a pesticide that some scientists believe causes neurological problems in children. Colorado and New Mexico are cracking down on greenhouse gas emissions from wells drilling for fossil fuels. Oregon embraced the federal standards that were in place before Trump took office and folded them into state law, so it could enforce them regardless of what changes the EPA made.
And California has challenged Trump’s EPA on a broad front, from fuel economy standards to tailpipe emissions. It’s fighting to keep the national leadership role the state earned through the waivers it won over decades of negotiations with the EPA. At the same time, more than 250 mayors have staged a campaign opposing the Trump administration’s efforts to roll back the Obama-era rule requiring power plants to reduce their greenhouse gas emissions.
The blizzard of environmental actions is making life difficult for quite a few industries. Whichever side businesses find themselves on, the one thing they dislike most is uncertainty. These battles have introduced enormous long-term uncertainty about where the regulatory balance will end up. Industry groups have been pleading for some measure of standardization so they don’t find themselves whipsawed between competing strictures.
There have been many periods in the past century when the states, the “laboratories of democracy,” as Justice Louis Brandeis called them in 1932, experimented with new policy strategies. When it’s happened in the past, however, they created crucibles to transform existing policy into some sort of broad national consensus. That was the case in the 1990s, when Republican governors such as Wisconsin’s Tommy Thompson and Michigan’s John Engler reached an unlikely bargain with President Bill Clinton to transform national welfare law.
This time, though, the states are pushing in diametrically opposed ways. Some are tugging hard to the right. Others are pulling strongly to the left. That hasn’t happened, to this degree, in a very long time -- perhaps not since the civil rights era, when Southern states fought a rearguard action against desegregation efforts.
The Trump administration, to be sure, has cut back the federal government’s role in many areas. But its most important influence might be in the way it’s fueled aggressive steps in the states to find a new federal-state equilibrium. The real action is happening out in the country, where the states are riding off in different directions. There might well be a new balance, but it’s increasingly uncertain where it will end up.
