The Arizona Supreme Court cited a 160-year-old law – dating back to the Civil War era and before Arizona was a state – that will ban abortion and punish doctors who perform the procedure.
Anyone assisting in an abortion procedure will face two to five years in prison, while women receiving the procedure will receive a minimum one-year sentence.
The Arizona decision continues the long nationwide struggle for reproductive rights after the United States Supreme Court overturned Roe v. Wade. States are now working to either ban abortion or protect women’s health.
The U.S. Supreme Court’s ruling overturning Roe set into motion a modern debate centering on the issue of states’ rights. The dictionary defines states’ rights as “the rights or powers retained by the regional governments of a federal union under the provisions of a federal constitution.”
Former president Donald Trump evoked states’ rights this week when discussing abortion: “My view is now that we have an abortion where everybody wanted it from a legal standpoint, the states will determine by vote or legislation or perhaps both, and whatever they decide must be the law of the land in this case, the law of the state.”
Along with the Arizona decision, other states have previously passed laws banning or restricting abortion care for women.
The state-to-state debate sounds eerily familiar. When the United States entered the Civil War, the right of states to govern themselves was the overarching governing issue. However, slavery was the real issue. Southern states wanted to maintain their rights to enslave people.
So, we must examine this states’ rights argument more closely. How did we get to this democratic republic we call the United States? Who has the ultimate authority to govern? What happens when state and federal governments disagree? How are issues and laws resolved?
History provides us with an answer.
Before the Revolutionary War, the colonies despised the centrality of English rule in their lives and businesses. The war was fought primarily for independence from English rule. Still, after the war, the colonies found it difficult to agree on a system of government that maintained local governance amid national solidarity.
Former colonies were feuding over land disputes, and states still owed enormous debts. The Founders needed to develop a system of government that would protect local sovereignty while providing an overarching structure that would provide national unity.
So, the United States was created as a democratic republic, with citizens electing representatives to govern locally and nationally. The Founders wisely understood that states would act in their own self-interest, but there would be times when the federal government needed to intervene in the nation’s interests.
Article VI, Paragraph 2 of the U.S. Constitution is known as the “supremacy clause.” The article states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
It continues: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Federal and state elected officials must abide by the U.S. Constitution. This is also known as the second set of checks and balances. The first – and most famous – exists between the three branches of government: (1) Legislative, (2) Executive, and (3) Judicial. But this second set of checks and balances ensured the U.S. Constitution reigns supreme.
When Roe was decided in 1973, the justices stated: “The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right.”
Therefore, when current justices claim Roe was incorrectly decided, they must skirt their predecessors’ ruling, which was based upon Constitutional guidelines. In other words, the argument that abortion needs to be decided among the states is incorrectly argued because the judicial branch based its decision upon the Fourteenth Amendment.
The current states’ rights argument is yet another attempt by a small group of citizens to circumvent the Constitution and force their own will on others. This was the case before the Civil War and during the Jim Crow South– and it’s happening again today.
Fueled by religious extremism, a misinterpretation of the Bible and a disregard for the U.S. Constitution, anti-abortion advocates are hiding behind the notion of states’ rights to impose their fundamentalist theology and draconian laws upon everyone else.
States’ rights are a complicated concept filled with the good, bad and ugly. However, it would be wise to remember that our government is only as good as the people involved. We need more people engaged in this great American experiment to ensure the rights of every citizen—especially the marginalized— are protected.
Ensuring the rights of every citizen is the best way to make America great.
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