Opinion | Dobbs Overturned Much More Than Roe v. Wade

Most of my writing this week was on the recent elections in Iowa and New Hampshire, but most of my reading was focused elsewhere. In particular, I want to highlight this report from Jessica Valenti, published in her excellent newsletter, on proposed travel bans for abortion care in Tennessee and Oklahoma. The Tennessee ban, proposed by State Representative Jason Zachary, would make it a felony to take a minor out of state to obtain an abortion. As Valenti notes, “That means a friend, aunt or grandmother who helps a teenager get an abortion could be sent to prison for 15 years.” The Oklahoma bill, if signed into law, would punish anyone who helped a minor obtain abortion care with up to five years in prison.

I have written about how abortion bans implicate a broad set of rights tied to our personal and bodily autonomy, including the right to travel between states. And I have analogized this dynamic to the legal and political conflicts over slavery, which were about not just labor but also the right of free citizens to enjoy the privileges and immunities of U.S. citizenship, wherever in the country they happen to live.

One thing to recognize about the scope of states’ power from the founding to the Civil War is that it was broader and more expansive than we tend to recognize under modern conceptions of constitutional law. States, as most Americans understood them at the time, were governments of general jurisdiction with far-reaching police powers that gave them almost total discretion to regulate internal affairs. The federal government, by contrast, was a limited government of enumerated powers — a government that could take only such action as allowed by the Constitution.

The police power, the historian Kate Masur notes in “Until Justice Be Done,” “was grounded not in the idea that a government’s duty was to protect individual rights but, rather, in the conviction that government’s most important obligation was to secure the health, safety and general well-being of a community.”

“Laws concerning paupers and vagrants,” she continues, were “all ‘police’ laws, designed to ensure public peace and protect a community’s coffers. In the slave states, people frequently described as police laws measures designed to prevent slave uprisings and otherwise safeguard the slaveholding order.”

The Civil War and the constitutional amendments that followed brought a fundamental transformation of state and federal power. The states were now subordinate to the federal government in a way that wasn’t true before the war. And state police powers were now bounded by the rights established in the 13th, 14th and 15th Amendments. One way to understand the 20th-century expansion of national rights is that those constituted further restrictions on the police powers of the states. The constitutional right to an abortion, for instance, put real limits on the ability of states to regulate activity within their borders.