Observations on Abortion, Marijuana, States’ Rights, and Civil War
As the cliche has it, I “found myself” in California over the holidays. Of course, that meant an opportunity to partake of what is probably the most advanced cannabis culture in America in what is no doubt (new Jersey not excepted) the bluest state in the union. (And what a state it is: the fifth largest economy in the world all by itself.) This led me to reflect on my topic for this morning’s blog.
Nowhere in America does more hand-wringing over the Dobbs decision occur than in the Golden State. In decrying Dobbs, the focus invariably is on its impact upon a woman’s right to choose. This is perfectly appropriate and I share that concern. Such discussions often occur while vaping marijuana. California is just one of no fewer than 24 states in which recreational marijuana is now legal. Even more states, including my own Pennsylvania, have legalized medical marijuana; given how easy it is to get authorized as a medical-marijuana patient, one might argue that the line is at best hopelessly blurred between de jure legality and de facto legality of recreational use.
That said, I am stricken by the lack of comparison between abortion rights and marijuana rights. To understand what I mean, let’s first acknowledge that there is an alternate way of characterizing Dobbs. The case can be viewed as fundamentally a states’ rights decision. The abortion issue was returned to the states. Many a candid legal scholar on either side of the right-to-life/right-to-choose debate might admit that the stronger Constitutional argument favored this result. After all, Roe was anchored in the Warren Court’s view of a “penumbra” of rights, not expressly stated or accorded in the Bill of Rights, but somehow emanating out of the enumerated rights. As frequently noted, the word “privacy” appears nowhere at all in the U.S. Constitution. If, then, one might (however reluctantly) concede that the Warren Court (just perhaps) overreached, then returning to the 50 states their historic Constitutional prerogatives might make some sense.
The irony is that those who advocate for a federally protected Constitutional right to an abortion undoubtedly overlap demographically with those who favor legalization of pot. (Do I really need to hunt down statistics to support this proposition, or can we just take “judicial notice” of it?) Yet they seem blind to the parallels. Just as abortion has become de jure a state-by-state issue, marijuana has become de facto a state-by-state issue. The federal government has abandoned the field to state law where cannabis is concerned. Like abortion, it has been allowed to shift from federal jurisdiction into the realm of states’ rights.
I began this little essay with a cliche. Please permit me to offer another: “What’s sauce for the goose is sauce for the gander.” Per the esteemed Merriam Webster Dictionary, this signifies that “one person or situation should be treated the same way that another person or situation is treated.” If our individual states are entitled to legislate individually on marijuana use, ought they not also be entitled to legislate individually on abortion rights? This is just a question… one that I think needs asking.
The right answer just might mean the difference between a second American Civil War and peaceful coexistence. The worst mistake either party could make, where abortion is concerned, would be to pass a national statute that either legalized abortion or outlawed abortion. The states are working it out. This means each state’s citizens are working it out. People have been voting at the ballot boxes. And, since this is not China or Russia, they also are voting with their feet. My holiday travels also took me briefly to Texas, where Austin and its environs have mushroomed ten fold in population since my wife Joey and I lived their forty five years ago. Whatever the motivation(s) for this massive in-migration, a passive acquiescence to the state’s laws must be present at a bare minimum. The same may be said of those who migrate to California, albeit the weather and/or a job opportunity may be a primary motivator.
I’m suggesting here that enhanced states’ rights may be the best buffer we Americans have against a second Civil War. This means in essence you leave my stash alone on this side of the state line and I’ll hush up about how you chose to regulate abortions. It’s a bitter pill for many to swallow —-a metaphor or another cliche? or both?—- but it may be the best way, perhaps the only realistic way. If neither party we can bring us all together via the White House and the Congress, then let us choose to coexist. The organizing principle —-one that led to the first Civil War —- that this time saves the Union, just might be good ol’ states’ rights.
