The Supreme Court has decided the there is no constitutional right to abortion. The matter therefore has devolved to the states to pass or not to pass laws as they see fit. A corollary to that ruling is whether or not the Eight Amendment banning cruel and unusual punishment applies to the states as well.

When the Supreme Court thinks about abortion, what images come to mind? Does it think of healthy white women who are carrying a healthy white fetus conceived of by a married couple … meaning as if their own parents had aborted them?

Instead, do they think of poor white trash, an unmarried white woman carrying a fetus which may or may not be healthy?

Perhaps what comes to mind, is a non-white person whether married or not, carrying a fetus which may or may not be healthy?

I do not know the answer to these questions. However it does seem unlikely that medical concerns were of much concern to the Supreme Court be they to the fetus or the mother. No guidelines were issued to be followed in the event a state chose to issue a ban on abortion. At least previously there had been a trimester plan. The Supreme Court decision seems to have been based solely on abstract principle as one might proclaim devoid of human interaction. Once the decision was made, it did not take long for incidents in the real world, to expose the shortcomings and inadequacies of the ruling.

CRUEL AND UNUSUAL PUNISHMENT

In earlier blogs (The Law of Unintended Consequences: From Abortion to Voter Suppression December 5, 2021, Abortion Armageddon: The Post-Alito Apocalypse May 8, 2022), I detailed some of the conditions in the real world which could and did arose based on the state laws implemented or triggered by the Supreme Court ruling and proposed some remedies (Abortion and Gun Control: Democrats Bring a Plastic Spoon to a Gunfight and Wonder Why They Lose

May 27, 2022). At that time and since then people have written about the various ways in which the state bans have caused cruel and punishment although without using that phrase. There is no need to expand the list to include all the medical conditions which can and have arisen due to:

1. women being forced to carry a medically comprised fetus to term
2. women being forced to give birth to a medically comprised fetus
3. women having to endure the heroic medical care being given to the medically compromised fetus or being saddled for life for having to care, meaning pay the medical bills, for a medically compromised fetus
4. women being forced to give birth to twins when one is medically comprised fetus or even dead.

The list goes on and on including when the health of the mother herself may be at risk. The situation may create a dilemma for the medical staff as to what to do as they are sucked into the maelstrom created by state legislatures and governors in the race to the bottom. It is painful enough for librarians and teachers scared about what they can say in a classroom or what book they can assign or make available. Only here the situation is one of life and death.

So the question remains, is the treatment mandated under state law one that imposes cruel and unusual punishment? Do states have carte blanche to create any abortion bans they want without consideration to whether or not it permits cruel and unusual punishment on the mother of the child, the father of the child, the doctor and related medical staff attempting to provide medical care, or to the child who now legally is a person?

I do not know if the abortion bans qualify as cruel and unusual punishment as written, but one would think based on the anecdotal evidence that people certainly are suffering as a result of the state bans. This would seem to be an issue for the Supreme Court to decide as soon as possible.

CONFEDERACY

But there is more to the story than simple cruel and unusual punishment. There are the states which have chosen to make cruel and unusual punishment the law of the land. A CNN map showing the states which have enacted abortion restrictions shows a decidedly Confederate tinge. This would be even more true if South Carolina had been successful in implementing its own ban.

We are at a point where Marjorie Taylor Greene’s call for a divorce is becoming more and more true every day. It is not just that the Union and the Confederacy vote differently at the state level. Rather there are a whole host of issues where the two regions functional differently legally in our federalist system. The list of differences include but is not limited to:

COVID (and vaccines)
CRT (and 1619) prohibitions
Gerrymandering
Gun control
Medicaid expansion
Voter suppression.

In many ways we already are two countries. People are learning to plan trips from the Confederacy to the Union in order to have an abortion. Various organizations are issuing travel warnings about visiting certain states.

Given this reality, what can be done? Previously I had written a blog about whether California or South Carolina would secede first following the 2024 presidential election (Will California or South Carolina Secede First? September 25, 2020). We are at a point where neither would be sad to see the other side go. But we also can see there are many ways the two houses can operate within the same legal structure with both still standing. A Confederate judge in Texas can throw the whole country in a tizzie over what medication can and cannot be used to prevent pregnancy or to cause an abortion.

Once again, I return to the West Virginia solution (Can West Virginia Save Ezra Klein? October 11, 2021). In our last Civil War, the people in the Commonwealth of Virginia separated to form their own state over the issue of slavery. They did so constitutionally. It happened once before, it can happen again. If the Confederate states divided into their Union and Confederate constituencies so many of the problems identified above and at federal level would disappear. While it would not solve all the problems facing the country, it would solve a great deal. Even the threat of dividing all eleven Confederate states would immediately changes the political dynamic of the country. Do you have a better solution?