The disunited states
A leaked supreme court draft that could signal the overturning of the Roe v Wade ruling on abortion rights has shaken America to its core. Can it survive the fallout?
By David Smith
YOU PUT YOUR BABIES IN THE WOMB, you will be held accountable!” yelled Steve Corson, tall, bearded and jabbing a finger at women who chanted back: “My body, my choice!” Corson, 65, from Fredonia, Arizona, took a deep breath and blew into a shofar. Then Nathan Darnell, wearing a “Jesus Christ is king” cap and holding up a cross, grabbed a megaphone. “You guys are demon-possessed!” declared the 19-year-old from Haymarket, Virginia. “Every child has a right to life.” Suddenly, Darnell was surrounded by abortion rights protesters brandishing placards. He kept talking. “You guys are evil. The downfall of America is because of every one of you.” The national day of prayer last Thursday was anything but a solemn occasion outside the supreme court in Washington, where hours earlier an unscalable black fence had been erected, reminiscent of the one that surrounded the US Capitol after the 6 January insurrection. The fury was unleashed by a leaked draft opinion showing the nation’s highest court provisionally voted to overturn Roe v Wade, the 1973 ruling that effectively legalised abortion. It was a political earthquake revealing American women to be perilously close to losing a fundamental right. It was also a milestone in America’s journey from United States to divided states. The likely demise of Roe v Wade could drive the biggest wedge yet between what appear to be two irreconcilable nations coexisting under one flag. Liberal states would become sanctuaries for women seeking abortions and saturated with providers, conservative states would turn into deserts that ban the procedure and criminalise doctors who provide it. Some wonder if the country’s social fabric, frayed by four years of Donald Trump’s presidency, can survive. “The death of Roe is going to tear America apart,” ran the headline of a New York Times column by Michelle Goldberg, which concluded that “the death of Roe will intensify our national animus, turning red states and blue into mutually hostile legal territories. You think we hate each other now? Just wait until the new round of lawsuits start.” Simon Schama, historian and art critic, tweeted: “When Roe vs Wade is overturned it will be time to find a different name for this country.” The supreme court’s draft majority opinion, written by Samuel Alito and circulated on 10 February, was leaked to Politico last Monday. It argued in contemptuous tones that Roe v Wade “was egregiously wrong from the start” and “enflamed debate and deepened division”. Four other Republican-appointed justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – agreed Roe “must be overruled”. If that decision becomes final, possibly next month, it will tear down a national precedent and turn America into a chaotic legal patchwork. The first restrictions would take effect in 13 states with so-called trigger laws to be enacted once Roe is overturned. Some such laws ban abortions almost completely while others would outlaw them after six or 15 weeks. The speed of trigger laws could vary. In Texas, a near-total ban would go into effect 30 days after a supreme court decision. The Guttmacher Institute, a research and policy organisation, estimates that 26 of 50 states are certain or likely to ban abortion if Roe is overturned, leaving women in swathes of the south-west and midwest without access. In 11 states there would be no exemptions for rape and incest. Republicans in Louisiana are even considering a bill to allow prosecutors to charge those having abortions with homicide. Most states where abortion would still be legal are on the west coast or in the north-east. California governor Gavin Newsom proposed last Monday enshrining a right to abortion in the state constitution. In Oregon, Democrats recently passed a bill to create a $15m fund to assist with costs, including for women travelling from outside the state. Women might have to travel hundreds of kilometres and this would be especially difficult for women in poverty, often including women of colour, and could lead to a sharp rise in unsafe abortions. Republican-led states have already tried to restrict access to abortion pills, which can be prescribed through online telemedicine visits. DISPUTES HAVE RAGED OVER HEALTHCARE, immigration and race in recent years – the journalist Carl Bernstein spoke of a “cold civil war” – but few can match the raw emotional power of reproductive rights. That was clear outside the supreme court last Thursday, as two vociferous groups faced off. The Rev Patrick Mahoney, director of the Christian Defense Coalition, said into a microphone: “We look forward to the day when abortion ends up on the scrap heap of history like chattel slavery and segregation.” Rochelle Rubin, 20 paces away, shouted at him: “You don’t have a uterus! Shut up!” Rubin, 50, an estate agent and lawyer, explained later: “If I didn’t have a choice, my life would be very different today. Ten years ago I exercised my choice and had an abortion. For 50 years, you can have a right – and it could be taken away by five people.” Mahoney, 68, said he was “overjoyed” by the draft opinion but acknowledged the societal shockwaves. He added: “What you see on the streets is the cutting edge of the cultural faultlines. We saw that with the tragic murder of George Floyd. But our nation went through this upheaval and we’re moving forward so that’s what I hope happens here.” The great divide on abortion is not a 50-50 split. It is asymmetric. A poll released by the Data for Progress thinktank after last week’s leak showed that voters wanted to keep Roe by a two-toone margin. Democrats, independents and more than a third of Republicans support it. Its imminent fall is due to a quirk of US democracy that skews the electoral college, Senate and supreme court out of kilter with the popular will. Justices Gorsuch, Kavanaugh and Coney Barrett were appointed by Trump, who lost the national popular vote by three million, after Senate Republicans blocked Barack Obama’s last nominee, Merrick Garland. Elaine Kamarck, a senior fellow in governance studies at the Brookings Institution in Washington, said: “The basic structure of politics with all these small rural states being essentially overrepresented is creating the situation where minorities can control the majority. People are going to be furious about it. “Friends of mine in New York talk about not letting their tax dollars go to red states because the irony is that all the blue states send more money to the federal government than they get back and the goddam red states take all the money and try to run the lives of everybody in the blue states. So there really is a war going on and it’s a cultural war.” States have been drifting apart for years, across faultlines characterised as liberal v conservative, Black v white, urban v rural, college-educated v blue collar, and mask-wearers v vaccine sceptics. The 2016 presidential election was framed as Trump’s “deplorables” against Hillary Clinton’s “coastal elites”. The supreme court looks set to toss a grenade into the mix. The fight is under way. A day of action for abortion rights is planned for 14 May in cities across the country. The issue could also galvanise Democratic turnout in November’s midterm elections. Eric Swalwell, a Democratic congressman, said: “There will be an effort to turn out young women and their male allies when that decision comes. I hope it doesn’t have to happen but I think it will be the backfire of the century for Republicans.” The Senate was due to vote this week on legislation that would codify abortion rights into federal law but Democrats do not have the necessary 60 votes to overcome a Republican filibuster, which means the Joe Bidenbacked effort will fail. The symbolic vote will underline again that America is one nation divided by common language: there have never been so few Republicans who support abortion rights, nor so few Democrats who call themselves “pro-life”. Fareed Zakaria, an author and broadcaster, warned in the Washington Post: “America has become two countries. One is urban, more educated, multiracial, secular and largely left of centre. The other is rural, less educated, religious, white and largely right of centre.” Blue America would fit comfortably with northern European Protestant countries, Zakaria said, while red America’s cultural values make it closer to Nigeria and Saudi Arabia. “For the country’s political future, the central question is now this: can these two Americas find a way to live, work, cooperate with and tolerate one another? If not, the abortion battle may be the precursor to even larger struggles.” Observer