‘Hard for it to be a bigger deal’: The future of American rights

The Voting Rights Act. Title IX sex discrimination legislation. The Americans with Disabilities Act. Supreme Court rulings overturning state bans on contraception and interracial marriage, and legalizing abortion and gay marriage.

In general, over the past 60 years Americans have experienced a sweeping expansion of federally guaranteed personal rights. During this “rights revolution” era, the United States government established a foundation of laws that apply to every state in the land.

But that era now appears to be over. If anything, the tide may be running in the other direction, as conservative justices and Republican-controlled states look to roll back aspects of this revolution that they believe constitute legal overreach.

The Voting Rights Act was trimmed in 2013, when the Supreme Court overturned a provision that required states with a history of discrimination to submit proposed voting changes to the Department of Justice. The landmark abortion ruling of Roe v. Wade may be next, as the court appeared to be leaning toward limiting abortion rights during oral arguments in December.

If abortion is limited, other personal rights guaranteed by the federal government could also be in question, from same-sex marriage and sexual activity to access to birth control and some fertility treatments. 

That is because the logic critics use against Roe could weaken the legal foundations of other rights based on similar principles, including some Americans may take for granted. All are based on a “right to privacy,” which is not written in the Constitution but which past Supreme Courts have inferred from the Bill of Rights’ other guarantees of citizen liberties.

Meanwhile, GOP-controlled states are already passing a flurry of bills that place new restrictions on voting, medical care and sports participation for transgender children, the teaching of history, gender education, and other sensitive rights issues. Some are enforced with vigilante provisions that empower citizens to take enforcement into their own hands.

The bottom line: The long-standing common American approach to many personal rights may be fracturing. The rights you enjoy may soon depend on where you live, with blue and red states diverging on abortion, marriage, gender, and other contentious issues.

“This is a big deal,” says Donald Kettl, a professor emeritus and former dean of the School of Public Policy at the University of Maryland. “In the context of American democracy, it would be hard for it to be a bigger deal.”

Rights “retained by the people”

In 1787, when the founders were debating the Constitution, a number of states said they couldn’t possibly ratify it without basic guarantees of personal rights. James Madison and fellows produced the Bill of Rights – eventually the first 10 constitutional amendments – to address this problem.

These rights applied to the federal government and, as every U.S. schoolchild should know, include freedom of speech, religion, assembly, and the press. They guarantee the right to bear arms, freedom from unreasonable searches, the right to a jury trial, and so forth.

Crucially, the Ninth Amendment states that the Constitution’s naming of rights “shall not be construed to deny ... others retained by the people.” This was Madison’s way of ensuring that Americans weren’t limited to only the specific rights that the Bill of Rights mentioned.

Since then the U.S. has added a number of federal rights to the list. Some were passed by Congress and the states and written in the Constitution, such as the 14th Amendment, which following the Civil War granted citizenship and equal civil and legal rights to Black formerly enslaved people. Some were unwritten, or “unenumerated,” rights stemming from Supreme Court decisions.

From the beginning of the nation, even prior to the passage of the Bill of Rights, there has always been a fierce debate in America over what the country’s basic rights should be, says Professor Kettl, author of “The Divided States of America.”

That’s true even if the right seems established. Think of the arguments that swirl around freedom of speech and the right to keep and bear arms today.

Sometimes rights are ignored. During Reconstruction, Southern states fiercely resisted the political rights of Black citizens, effectively negating the 14th Amendment in the former Confederacy.

But effectively dismantling them at the national level and returning them to states for enforcement would be unprecedented.

“At this point, slamming on the brakes is truly historic and runs against the long arc of history,” says Professor Kettl.

What comes after Roe?

Abortion is one national right that could be rolled back soon. Pending on the Supreme Court docket is a ruling in Dobbs v. Jackson, a challenge to a Mississippi law that bans abortion at 15 weeks. 

Given the high court’s 6-3 conservative majority, and the questions that conservative justices asked during Dobbs oral argument, it appears likely this ruling will at the least make large changes in abortion law.

If Roe is overturned or curtailed, at least 21 states would be certain to ban abortion as soon as possible, due to laws or state constitution amendments already on the books, according to the Guttmacher Institute, which favors abortion rights. 

Many of these states are already moving to update their abortion restrictions, anticipating a post-Roe world. Some are moving forward on legislation that would ban or limit pills that induce abortion, a method that now accounts for more than half of abortions in the U.S.

While abortion-rights groups consider access to the procedure a fundamental human right, many anti-abortion activists see it as murder, and an overwhelming moral issue. This divergence is reflected in the opposite ways some states are responding to Roe’s possible demise.

Oregon has created a $15 million fund to support women who must travel to receive abortions, including from other states. In Missouri, a prominent anti-abortion state legislator has introduced a bill that would allow private citizens to sue anyone who helps a Missouri resident travel out of state for abortion care.

“This is federalism flipped upside down, with a national conflict played out in subnational institutions,” says Jacob Grumbach, an assistant professor of political science at the University of Washington and author of the upcoming “Laboratories Against Democracy: How National Parties Transformed State Politics.”

What about a “right to privacy”?

Depending on how the Supreme Court rules, the ruling in Dobbs v. Jackson could also reverberate beyond the issue of abortion. The 1973 Roe decision was famously based on a “right to privacy” that the Supreme Court ruled 7-2 protected a pregnant woman’s right to choose. And it’s not just abortion – other big high court rulings have invoked a privacy right as well. 

The right to privacy is an unenumerated right that the Supreme Court first made explicit in a 1965 ruling, Griswold v. Connecticut. In that case the high court held that a Connecticut law banning the sale of contraceptives, even to married couples, was unconstitutional. 

Writing for the majority, Justice William O. Douglas said this was so because various guarantees in the Bill of Rights create “penumbras,” or zones, of privacy. These zones can be inferred through a reading and understanding of existing rights, Douglas said.

Many conservatives have long opposed the logic behind the right to privacy. They see it as judge-made policy that is based nowhere in the Constitution’s actual language.

In his 2012 presidential run, GOP candidate Mitt Romney said of Griswold, “I don’t believe they decided that correctly.” Current Sen. Marsha Blackburn, a Tennessee Republican and Judiciary Committee member, said during last month’s Supreme Court confirmation hearings for Judge Ketanji Brown Jackson that Griswold was “constitutionally unsound.”

Most experts don’t think the GOP would support returning to the states the issue of controlling contraceptives, given their ubiquity today. Bashing Griswold has been a way to undermine Roe, they say.

But there is another ruling involving a privacy-based unenumerated right that might be a GOP target: Obergefell v. Hodges, the 2015 case that established a same-sex right to marriage.

Most Americans, including a majority of Republicans, support gay marriage today. And in fact Obergefell was written by Justice Anthony Kennedy, a Reagan appointee. But some religious groups continue to see it as an infringement on their First Amendment religious rights. And the 2020 GOP platform called for overturning Obergefell.

GOP Sen. John Cornyn of Texas talked about this issue at length in his own Judiciary Committee questioning of Judge Jackson. Among other things, he said Obergefell struck down the laws of 32 states that had decided to maintain what he called the “traditional definition” of marriage as being between a man and a woman.

“One of the things that concerns me is here is an example of the court finding a new fundamental ‘right’ that is mentioned nowhere in the Constitution, that is the product of court-made law, that we’re all supposed to salute smartly and follow because of nine people who are unelected. ... Five of them decide that this is the way the world should be,” Senator Cornyn said.

Red and blue states diverge as culture wars heat up

One way in which American states are already diverging from each other in their treatment of rights is in their handling of culture war issues.

In reaction to former President Donald Trump’s false claim that the 2020 election was stolen, many Republican-controlled states have passed voting laws containing such restrictions as curtailing mail-in ballots and establishing new voter identification requirements. Other states have passed laws expanding same-day registration and access to absentee ballots.

Texas, Utah, and some other red states have passed laws barring transgender young people from participating in sports or receiving medical treatment for gender-affirming care. At least one blue state – California – is considering making itself a legal refuge for transgender children and their families.

Florida and some fellow GOP-controlled states have enacted laws that restrict how history and gender studies are taught in schools.

Why are these bills popping up in a coordinated manner today in GOP states? Several reasons, says Professor Grumbach of the University of Washington.

One is that they are more confident the laws may withstand judicial scrutiny given the increase in right-leaning judges at lower levels, and the expanded conservative majority on the Supreme Court.

Another is that governors and state legislators are more integrated into the national Republican Party at a time when it is leaning into a more aggressive approach to hot social issues. National groups such as Heritage Action are coordinating state-level legislation. 

That nationalization of local politics is happening on the Democratic side as well, amid a decline in local news and the rise of social media, Professor Grumbach says.

“Red and blue states are going to pass increasingly different policies in that context,” he says.

The rise of “vigilante federalism”

A final aspect of the widening rights gulf between red and blue states is the privatization of legal enforcement – a phenomenon that Jon Michaels of the University of California at Los Angeles School of Law and David Noll of Rutgers Law School have dubbed “vigilante federalism.”

This refers to laws that empower private citizens to sue to enforce compliance. For instance, SB 8, the Texas law banning abortion after six weeks of pregnancy, gives private actors the right to file civil lawsuits against anyone who “aids or abets the performance of an abortion ... or intends to do so.”

This approach is already changing the legal and political landscape, says Professor Michaels. It is part of a number of the red-state rights bills passed in recent years. Florida’s Parental Rights in Education legislation – which critics dub the “Don’t Say Gay” bill – allows parents to bring lawsuits against any school district that they believe has violated its ban on age-inappropriate instruction about sexual orientation or gender identity, for one. 

Some blue states have discussed using the “vigilante federalism” approach for gun legislation and other purposes, but so far the practice is primarily used in Republican-controlled states.

“It’s in keeping with this populist movement that is driving the right wing in this country that individuals should be empowered to take the law into their own hands, and not be deferential to government officials,” says Professor Michaels.

The approach will also keep blue cities located within red states from ignoring bills that local prosecutors might find objectionable. If citizens can bring action, potential enforcement agents are everywhere.

Professor Michaels says he has already seen news stories of parents of transgender children in Texas traveling to California to explore whether a move to escape Texas law is feasible.

“We could imagine a world in which there is a mass exodus,” he says. “We’re heading into a space where your state identity is going to matter a whole lot more than we’ve ordinarily thought in modern America.”