From 1860 to 2024

The dubious path of righteousness

A controversial issue of human rights appears to be settled by an authoritative decision that pleases one side but leaves the other dissatisfied. For decades the dissatisfied grumble yet the decision stands. Then the Supreme Court overturns the decision. The formerly dissatisfied are delighted, while the formerly happy are dismayed. A presidential election approaches. The newly reopened issue becomes a flashpoint. The winning candidate disavows intent to aggravate the issue. He isn’t believed. The disbelievers try to bolt the Union.

The first incarnation of this scenario unfolded between 1820 and 1860. The issue was slavery. The decision that appeared to settle the matter was the Missouri Compromise, which gave half of the new west to slavery and half to freedom. Slavery’s advocates didn’t like being barred from any part of the west and loudly said so. Yet they lacked the heft to break the bar until the 1850s. Congress cracked the bar a bit in 1854 when it gave slavery a chance to compete for favor in Kansas and Nebraska. The bar was annihilated in 1857 when the Supreme Court ruled in the Dred Scott case that the Missouri Compromise was unconstitutional. The entire west was now open to slavery. Heartened, slavery’s advocates strived to extend the opening to the rest of the country. Abraham Lincoln disliked slavery but said the president lacked the authority to act against it in the states where it existed. When Lincoln won the 1860 election, southerners disbelieved his disavowal, pointing to the more avowedly antislavery members of his Republican party. Eleven southern states, concluding that their constitutional right to permit slavery was in jeopardy, seceded.

The second incarnation is still unfolding. In 1973 in the Roe case the Supreme Court ruled that abortion rights were constitutionally protected. Abortion opponents condemned the decision and set out to overturn it. For five decades they failed. But in 2022 in the Dobbs case, the court reversed the earlier decision. Abortion was not a constitutional right, it said. States could restrict or allow it as they saw fit. Abortion opponents were thrilled. In several states they succeeded in passing restrictive laws. Some worked to extend the restriction to the nation as a whole. Republican nominee-apparent Donald Trump said little about abortion in the unfolding 2024 campaign, but abortion opponents noted his record as president of appointing the justices responsible for the Dobbs decision and claimed him as one of their own. Some talked openly of the ways by which an anti-abortion president could make abortion difficult even in states that permitted it. A Trump-controlled USDA, for example, might withdraw approval for mifepristone, the most common abortion drug. A Trump department of justice might assist in the extradition of women who traveled from anti-abortion states to abortion-tolerant states for abortions. The Supreme Court, perhaps augmented by one or more additional Trump appointees, might strike down state shield laws protecting abortion providers from prosecution by anti-abortion states. Women in abortion-tolerant states wondered aloud if their rights would be safe under a second Trump administration.

Most advocates of abortion rights in the 2020s would be appalled to be likened to apologists for slavery in the 1860s. They would much prefer being identified with the antislavery forces of the earlier era. Yet structurally they found themselves in a position analogous to that of the slavery defenders. A right they had long considered theirs by constitution appeared imperiled by an incoming administration. In the 1860s the fears provoked secession. What would the fears produce in the 2020s?

That's hard to say. The secessionists had been thinking about their move for decades. In South Carolina, the hotbed of separation, loud voices had been pleading for a break since the Compromise of 1850. Distinguished figures, including John C. Calhoun, had constructed an elaborate justification for secession. In the early 21st century, secession was a fringe conceit of cranks who had never recovered from the Civil War. The very idea of secession was generally ridiculed by liberals.

For that reason there wouldn't be any preemptive secession such as had occurred in the 1860s. But if a second Trump administration took serious steps to implement the anti-abortion agenda of its partisan base, people in such liberal states as California and New York might come to the same conclusion as the secessionists of the 1860s: that the interests of the ruling national government were no longer the interest of their states. Likely the modern liberals would wait and see whether they might recapture the national government. But if they concluded they couldn't in any reasonable time period, a bolt to preserve what they considered self-government wouldn't be unthinkable.

What would happen after that would be anyone's guess. A peaceful separation like Brexit? A war like that in the 1860s, or in Ukraine in the 2020s?

Either prospect ought to sober modern secessionists—and those who might push the secessionists to such a fateful step. But like the slavery issue, abortion is one that causes people to dig in their moral heels. Many would consider any compromise a pact with the devil. Some might well consider a war the only course of honorable action. After the Civil War—after hundreds of thousands of people had been killed—few on either side thought their cause less than righteous. If anything, the war made them feel more righteous, for having sacrificed so much for their cause. To think otherwise would suggest it had been in vain.

And moral vanity is the most dangerous temptation of all.