For Utah Sen. Mike Lee, it’s a chance to declare Utah women second-class citizens. And to turn Utah into a second-tier state, facing boycotts, a brain drain and other blowback.
It’s all about the idea that each of the 50 states can make its own laws and rules apart from the federal government. Except when they can’t.
To Brandeis, it was good that one state can try something that, if it turns out to be a really bad idea, wouldn’t hurt anyone outside that state. And if it proves to be a good idea, it could be adopted individually by other states or by Congress for the whole nation.
The specific case where the idea was coined was one where the majority of the U.S. Supreme Court told the state of Oklahoma that it could not require a business to get a license if it wanted to sell ice. Brandeis, in dissent, said it should be left to Oklahoma to conduct its own experiment.
Lincoln, of course, was concerned with something more than ice. He saw the inevitable doom of a nation that was so split over the existence of slavery, prohibited in a majority of the states but seen as the core of the culture in a significant number of them.
Lincoln and Brandeis would probably agree that state-by-state experimentation can be fine for little things, like who could sell ice, but not for big things, like who could sell people. Some principles are too important to allow individual states the freedom to get it wrong.
What’s different now is that Utah’s Lee and a pair of his fellow Republican senators — Ted Cruz of Texas and Josh Hawley of Missouri — clearly think that torpedoing Roe v. Wade is a big thing. So do Utah Attorney General Sean Reyes and all four of Utah’s members of the U.S. House of Representatives.
But their approach is to ask the Supreme Court, which now skews to the right, to allow each state to get it right, or wrong, on its own.
All of them represent states that, if the federal courts allow it, will almost certainly ban abortion. Utah already has a law on its books that will kick in the moment the courts end the protections of Roe, a law that prohibits abortion except in cases of rape, incest and to protect the health of the mother. (Except, of course, for women wealthy enough to go to another state.)
We know that Lee’s point is to enshrine in law the idea that women are less than men. He bluntly admitted as much when he said last year that he opposes the Equal Rights Amendment because equal rights for women can only mean abortion will be a protected right. So, as Lee says, legal abortion and equality for women are inseparably tied.
We can make a pretty good guess which states will, if allowed, ban abortion and which won’t just by looking at the map of the last two presidential elections. All the red states will probably ban abortion, though the sudden realization that such a ban would actually take effect might slow that result in some places.
Blue states will respect the rights of women and keep abortion legal.
(So will Canada. Which recalls that map a lot of folks posted on social media in 2016, with Canada and blue states on the coasts forming a new country — called, well, Canada — and the remainder red states forming another country — called Texas. Or Utah.)
And then we will have the great resorting. Not like the American Civil War. More like the partition of India and Pakistan in 1947. That’s when some Brits who didn’t understand the culture of the place — and didn’t really care as they were packing up to leave anyway — drew lines and created one nation for Hindus (India) and one nation for Muslims (Pakistan).
Millions of people who found themselves on the wrong side of the line picked up and moved. Many of those who didn’t move fast enough got killed. It’s a mess that still hasn’t been sorted out.
If Lee gets his way, Utah and the other abortion-banning states will quickly find themselves excluded from much of modern society and the American economy. Businesses won’t locate here. Students won’t choose to go to college here. Tourism will suffer. Because so many people will not want to be associated with a polity that treats women so poorly.
It will be like Georgia losing the Major League Baseball All Star Game. Like Utah losing the Outdoor Retailers trade show. Only a lot bigger.
Perhaps Utah should be a little more careful what it asks for. And maybe Mike Lee should stop trying to get it for us.
George Pyle, opinion editor of The Salt Lake Tribune, is trying to figure out how to adjust the spell check on his computer to spell words like “colour” and “labour” Canadian style.