Recently, numerous conservative Southern states (including Alabama, Texas, and Arkansas) have passed laws or enacted policies that criminalize health care for transgender youth.
In response, California and New York appear poised to pass their own laws . Broadly speaking, these laws would prevent removal of trans youth from supportive families, forbid cooperation with out-of-state investigations, prohibit issuance of subpoenas by in-state agencies, forbid in-state police from arresting providers and parents, and refuse extradition to states attempting to enforce these bans on health care.
These bills are desperately needed. Parents of trans youth in these Southern states are fleeing already, even as these cruel, anti-science, and nonsensical laws destroy Texas’ state child protective services from the inside out.
But there’s a bigger picture here. This tug-of-war between white, Southern conservative states and the North and West has played out in American history before, and it didn’t end well.
The U.S. Constitution established that slaves who escaped to abolitionist states were still slaves, and were to be returned to their owners in the South. The Fugitive Slave Act of 1793 allowed states to seize and return fugitive slaves. It also established a $500 penalty (massive at the time) for anyone who hindered slave-catchers or aided an escaped slave.
The 1793 Act was hugely unpopular. Cities and towns in the North passed laws and created sanctuaries meant to thwart the act. In retaliation, the Fugitive Slave Act of 1850 doubled the fines, eliminated the right of habeus corpus for Black people, and generally closed loopholes that Northerners had been exploiting.
Finally, there was the Supreme Court decision of Dred Scott v. Sandford. Scott had lived for 10 years in states where slavery was forbidden, namely Illinois and the Louisiana Territory (by the Missouri Compromise of 1820). The Taney court infamously ruled in 1857 that, as a Black person, he was not a US citizen, and therefore lacked the standing to sue for his freedom in a US court. This effectively ended any legal remedy for Black people in the United States, including northern freemen kidnapped and sold into slavery.
Which brings us back to the present day, where northern and western liberal states are confronted with conservative southern states dedicated they own the bodies of the women and LGBTQ+ people nationwide. The attack on bodily autonomy goes further than trans youth and abortion: there are emerging efforts to ban healthcare for transgender adults and reinstate sodomy laws. Thus, while transgender people are at the tip of the spear, others are not far behind.
For example, with Roe v. Wade likely to be overturned or rendered moot in June, Texas and other states banning abortion will craft laws making it a felony to seek abortion in another state. They will pass laws making it a felony to assist anyone seeking an abortion out of state, and make every attempt to criminalize doctors in other states who perform them (probably under the felony murder rule).
Similarly, after Roe v. Wade goes down, the Republican party has made it clear that Obergefell(which overturned laws banning same sex marriage) and Lawrence v. Texas (which overturned sodomy laws) will be next.
The instant Lawrence falls, homosexuality becomes illegal again in 12 states. Given how the GOP has decided that LGBT people are the number one threat to society and are launching attack after attack accusing the community of being “groomers” or pedophiles, it is a near certainty that states like Texas will appeal to the base and wield this law like a cudgel to drive people out of the state. They will also make attempts to drag people back for trial, the same as they do to parents of trans youth and those seeking abortions.
These sorts of efforts wouldn’t be nearly so frightening if the country had a functional Supreme Court dedicated to supporting human rights. Alas, it does not. The Supreme Court has been filled with right wing ideologues over the past 2 decades, all but one nominated by presidents who failed to win the popular vote. The Roberts court has been content to rule via the “shadow docket” and allow outrageous state laws like Texas’ SB8 “abortion bounty” to go into effect, even when they impinge on basic human rights.
Which is why there’s no reason to believe that this Court will rule with an understanding of what the past can tell the Court about the implications of its actions. The Taney Court’s Dred Scott decision is widely seen as the catalyst that made the Civil War inevitable. The conservative justices on the bench today are incapable of asking themselves what happens when they make a ruling that is incredibly unpopular with the American people and caters exclusively to white southern Christians.
What happens when southern states can reach deep into free states to tear families apart? What happens when you make it a criminal offense to help people escape from the old South because they can no longer exert basic bodily autonomy? What happens when you eliminate the safe harbors of cities and states in the North and West, and force them to participate in acts of cruelty that violate their fundamental ethics? What happens when the only safe harbor left for women and LGBTQ+ people is Canada?
You get secession and a Civil War, whether it’s 1861 or 2025. Like Taney, the court is going to come down on the side of the South again and again. Unlike Taney, though, they have the benefit of history to tell them exactly where this leads, which makes them even dumber than their intellectual forebears.
