WASHINGTON — What if Congress enacts a federal ban on abortion?
It’s no longer an outlandish question. While abortion rights are safe for the moment in California, a widely anticipated “red wave” of Republican success in the November midterm elections, followed by a possible GOP win in the 2024 presidential race, could lead to nationwide prohibition.
Abortion rights advocates’ fears were stoked last month by Supreme Court decisions that cut deeply against California’s liberal grain — not only on reproductive freedom, but also guns and climate change.
The rulings drew angry promises from state leaders to redouble resistance to the country’s conservative drift.
Nullification and secession may seem like musty terms from more than a century ago, but they’ve recently regained some of their currency. States blue and red are aggressively resisting federal mandates they find unacceptable.
Could there come a point where California’s defiance triggers a constitutional crisis of the sort not seen since the civil rights movement of the mid-20th century or even the Civil War?
Scholars and lawmakers won’t quite go that far. Lacy Ford, scholar-in-residence at the Institute for Southern Studies at the University of South Carolina, said efforts to buck the court’s rulings are “very distant cousins” to movements of the past.
Rep. Ro Khanna, D-Calif., said advocates “have to act within the Constitution.”
“But the Constitution is open to interpretation,” he added. “And they should take an expansive view of their actions to stand up for rights and freedoms within that and let it be challenged up to the court.”
And yet, the bitter divisions over abortion make echoes from long-ago conflicts seem less faint.
“I could see states like New York and California, if such a law was passed, say we ... do not agree,” said Douglas Egerton, professor of history at Le Moyne College in Syracuse, New York.
A federal abortion ban would lead to an “absolute political war,” said state Sen. Scott Wiener, D-San Francisco.
“We will do everything in our power to prevent reproductive health care services being criminalized in California,” he said. “We will stand our ground, and we will protect our people. And that’s what we do here in California, and we’ll do that again. But there’s no way we’re just going to sit back and let them shred the Constitution and shred our fundamental values.”
Nullification: a very brief history
Nullification, or a state’s refusal to recognize or enforce a federal law, has a long and complex legacy. Most notably, it helped lead to Southern secession and the Civil War.
California is operating so far in the tradition of states going their own way while being careful not to openly reject federal law. Courts have consistently ruled against nullifying such statutes, citing the Supremacy Clause in the Constitution, which says federal law supersedes all other.
However, states have taken notable stands against federal policy.
Kentucky tried in 1798 to separate itself from the Alien and Sedition Acts, which, among other things, criminalized “malicious” speech against the federal government.
In the the mid-20th century, Southern states, including Arkansas, fiercely objected to the Supreme Court’s Brown v. Board of Education ruling that called for desegregation of public schools. When Gov. Orval Faubus brought in the Arkansas National Guard to block nine new Black students from entering Little Rock Central High School in 1957, President Dwight Eisenhower dispatched the Army’s 101st Airborne to Little Rock to enforce the court’s ruling.
In such cases, political settlements ended nullification threats.
The Alien and Sedition Acts expired quickly. The Supreme Court said in 1958 that states could not nullify Brown. The 1964 Civil Rights Act and other laws effectively ended states’ legal efforts to sustain segregation.
However, settlements didn’t always work, especially during the years leading up to the Civil War. One flashpoint, the Fugitive Slave Act of 1850, required officials in free states to return escaped slaves to their masters without a trial.
Many Northern states balked, insisting on jury trials. Vermont and other states passed laws nullifying the act. In 1861 and 1862, Congress effectively overturned it.
Nullification in the 21st century
Nullification is not the anachronism history suggests.
Missouri’s Second Amendment Preservation Act became law last year. It bars state and local law enforcement officials from complying with certain federal gun laws. That has meant restrictions on cooperating with joint drug task forces and sharing weapon serial number data with federal authorities.
The Justice Department is challenging the effort, arguing that it nullifies federal law.
Other efforts to defy Washington may not be nullification in a strictly legal sense. But they demonstrate a pattern of resistance, notably in more conservative states.
In 2009, President Barack Obama’s administration offered incentives to states that adopted the “Common Core” education guidelines, including California. The program of goals and standards for students was designed by education experts, but some states saw it as a federal effort to control their school systems, and the effort largely collapsed.
The 2010 Affordable Care Act, which provided most people with the ability to buy health insurance, also included expansion of Medicaid, which covers many lower income and disabled people. The federal government would pick up most of the extra cost.
Twelve states, though, almost all dominated by conservative Republicans, have refused to fully adopt the expansion.
Golden State nullification
California has contested federal mandates with nullification-like policies.
In 2017, as President Donald Trump was implementing a series of anti-immigrant measures, California approved its “sanctuary state” law that made it more challenging for local law enforcement to cooperate with U.S Immigration and Customs Enforcement.
This year, legislators approved a budget with billions for expanding the state-funded Medi-Cal program to cover all income-eligible undocumented residents. The federal Medicaid program does not currently cover undocumented residents.
Wiener also included the state’s policies allowing legal cannabis sale, cultivation and possession among examples of efforts to “protect California.” Marijuana remains illegal at the federal level.
State voters in 2016 passed Proposition 64 to legalize recreational cannabis. A total of 15 states, including Colorado, Oregon, Illinois and, most recently, New York, also allow the drug to be used and sold recreationally.
“We’ve gone down this road before, where the federal government is out of control,” Wiener said. “Whether it’s attacking immigrants, or raiding cannabis dispensaries. We’ve done everything in our power to protect our own people.”
Abortion and the new nullification frontier
Talk of defiance has escalated since the Supreme Court last month created a new set of challenges for states wary of federal laws.
Justices said it’s up to the states to decide abortion policy. It ruled against a New York law regulating concealed carry permits. And it said Congress, not the Environmental Protection Agency, should authorize whether and how to regulate greenhouse gas emissions.
Newsom and California legislative leaders moved quickly after the court rulings. They agreed to a November ballot proposition that would enshrine the right to an abortion in the state constitution. The governor signed tough gun control bills into law.
The national political landscape has changed who pursues resistance and even nullification, said Egerton.
“Extreme states rights, threats of secession and nullification have always been the refuge of discontented minorities,” he said. “What’s different now is this is possibly the discontented majority.”
That’s likely true of abortion. After the Supreme Court overturned Roe v. Wade in June, an NPR/PBS NewsHour/Marist national poll found 56% of adults supported retaining the 1973 decision.
Republicans have captured the presidential popular vote just once since George H.W. Bush won 53% in 1988. Yet GOP appointees today control the Supreme Court. In the Senate, the Republican Party’s 50 votes are enough to block abortion rights, major gun control and climate change legislation.
“The Constitution was written in part to protect minorities from oppression,” Egerton said. “What seems to be happening now is the rule of the minority.”
As a result, said South Carolina’s Ford, “What we’re seeing is really a very new situation that doesn’t particularly draw on earlier precedent.”
Wiener agreed, saying the best way to prevent a federal abortion ban is to harness public opinion and turn out voters in November.
“We need to make sure we never get there,” he said. “We need to win elections. The politics are on our side on these issues. Banning abortion, ending marriage equality — these ideas are not popular. So we need to win elections and make sure this doesn’t happen in the first place.”
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