It’s often said that the arc of history bends toward justice, but the arc of American history seems to bounce toward it instead. During Reconstruction in the 1860s and 1870s, the federal government campaigned to build a multiracial democracy in the South. That project’s defeat in 1877 then ushered in 90 years of Redemption, mass disenfranchisement, and American racial apartheid. Only in the 1950s and 1960s did the civil-rights movement and the Warren Court finally drag the United States into genuine liberal democracy.
Another dip now appears to be underway. President Donald Trump and the Roberts Court are poised to spark a Second Redemption—an era where federal enforcement of civil rights is no longer assured, where states are free to allow citizens to be discriminated against in housing and employment, where voting is a privilege instead of a right, and where a person’s access to goods and services can be restricted by the beliefs of total strangers.
The latest blow came over the weekend when the New York Times reported that the Trump administration is considering plans to roll back civil-rights protections for an estimated 1.4 million transgender Americans. Some federal courts have concluded that gender identity is covered by some existing federal laws that forbid discrimination on the basis of actual or perceived sex. But conservative policymakers in the administration disagree, arguing instead for a narrow definition of gender based on a person’s assigned sex at birth. The Justice Department asked the Supreme Court on Wednesday to overturn a Sixth Circuit Court of Appeals ruling in favor of a transgender worker, arguing that Section VII of the Civil Rights Act of 1964 doesn’t cover discrimination against gay, lesbian, and transgender Americans.
If the Trump administration succeeds, transgender Americans’ rights would rest on a patchwork array of state laws and local ordinances. Twenty states and the District of Columbia forbid discrimination on the basis of gender identity in housing, employment, and public accommodations. Another dozen states have limited legal protections for transgender people, while more than 15 states, mostly in the South and the Great Plains, have none.
The geographic division roughly matches the divide on other matters of gender and sexuality. A Washington Post analysis in September found that abortion would automatically become illegal in 14 states under current laws if the Supreme Court overturns Roe v. Wade. (Roughly a dozen others could follow suit depending on the state legislature’s makeup at the time.) Seven states allow pharmacists to refuse to fill a contraceptive prescription without referring it to another provider. Twenty-eight states don’t have anti-discrimination laws for gay and lesbian Americans in situations like housing and employment. Seven states explicitly allow discrimination in adoptions and foster care.
One of the most popular political cliches of the last few years is the notion that there are two Americas. But this is not simply an issue of political differences, of red states vs. blue states. Increasingly, there are two Americas in legal terms: one where citizens broadly enjoy a range of rights and legal protections, and one where they don’t. As the federal protection of civil rights falters, and the Supreme Court lurches to the right, those differences are becoming severe—with dire consequences for women, LGBT people, and many other disadvantaged citizens.
Perhaps the most well-known chasm is over abortion rights. In theory, a woman’s right to obtain an abortion is protected from undue state interference by the Constitution under current Supreme Court precedent. In practice, however, the procedure is increasingly hard to obtain in the nation’s rural regions due to state laws designed to force abortion clinics to shutter. Mississippi, Missouri, North Dakota, South Dakota, and Wyoming each have a single clinic that performs abortions, while Kentucky, West Virginia, and Utah have two apiece. A 2014 survey by the Guttmacher Institute found that one in five American women has to travel more than 43 miles on average to the nearest clinic.
Some of that distance can be attributed to simple geography and population density. But it’s also mediated by political forces. Louisiana, for example, is slated to have only a single clinic covering the entire state after the Sixth Circuit Court of Appeals upheld a restrictive admitting-procedures law earlier this year. The Eighth Circuit recently refused to block a Missouri law that will leave a St. Louis clinic as the only available provider in the state. The confirmation of the staunchly conservative Brett Kavanaugh to the Supreme Court, replacing swing Justice Anthony Kennedy, raises the likelihood that similar measures will survive legal challenges, both in the lower courts and before the nation’s highest court.
Indeed, the most probable future for reproductive rights is a balkanized one: Women in blue states will still have access to the procedure, while women in red states will face a gauntlet of regulatory hurdles or have to travel long distances to obtain it nearby—if they can at all. Every year in the United Kingdom, hundreds of Northern Irish women who can’t obtain an abortion there cross the Irish Sea to have the procedure performed elsewhere in the country. The United States could see similar migrations by those with the ability to afford it in a post-Roe landscape.
In Michigan earlier this year, a pharmacist at a Meijer supermarket refused to fill a 35-year-old woman’s prescription for the drug misoprostal. The woman’s physician prescribed her the drug to complete a miscarriage she had suffered, but the pharmacist refused to fill it because he was Catholic, according to a letter sent to Meijer by the American Civil Liberties Union on her behalf earlier this month. He also refused to let another pharmacist handle it or to transfer the prescription to another pharmacy. “Unfortunately in Michigan, we don’t have an explicit state law that goes so far as to protect patients like Rachel,” an ACLU official told the Detroit Free Press.
The episode appeared to be a potential sign of things to come. The Roberts Court has taken a keen interest in religious-liberty exemptions in recent years, often ruling in favor of those who tell the court that their religious convictions run counter to state and federal laws. In Burwell v. Hobby Lobby, the court’s five conservative justices, including Kennedy, sided with the craft store chain’s claims that the Affordable Care Act’s contraceptive mandate violated its religious freedom. The mandate required most American employers to offer insurance plans that covered contraceptives.
In its ruling, the court held that the Religious Freedom Restoration Act, also known as RFRA, allows the owners of certain types of corporations to opt out of government regulations if those regulations run counter to their religious beliefs. Though individuals had been able to make RFRA claims under the law, the court had never held that it applied to closely-held corporations as well. The justices’ decision pleased religious conservatives who see liberal policy-making as antithetical to their faith. By applying it to companies, however, employees could have their access to healthcare shaped by religious beliefs that may not match their own.
Indeed, the ruling raised the specter that access to goods, services, and healthcare will be mediated by another person’s religious beliefs. Last term, the justices heard Masterpiece Cakeshop v. Colorado Civil Rights Commission, case involving a Christian baker who refused to bake a wedding cake for a same-sex couple, citing his personal religious beliefs. The Colorado Civil Rights Commission found that the baker had violated the state’s anti-discrimination law by refusing serve the couple because of their sexual orientation.
In their ruling in June, the justices sidestepped whether the baker’s First Amendment claim outweighed the state’s decision to protect gay and lesbian Americans from discrimination in the marketplace. Instead, they issued a narrow ruling in the baker’s favor that found the state commission had violated the principle of religious neutrality by allegedly denigrating his beliefs during their deliberations. Without Kennedy, the court’s leading figure on gay rights for two decades, the newly retrenched conservative justices could give conservatives Christians a legal path to bypass anti-discrimination laws that cover sexual orientation.
The end result of all this may be a country that feels less like the United States of the late-twentieth century, and more like the patchwork collection of German states that made up the Holy Roman Empire after the Protestant Reformation. Just as each duke and prince was free to establish Catholicism, Lutheranism, or Calvinism in their territory, many Americans may soon live in a country where their rights and liberties fluctuate as they travel from one state to the next, or even from store to store on the city streets. The laws across a broad section of the country may provide a safe space for those writing them, and for no one else.