Laboratories of Democracy

A peculiar chain of action and reaction is appearing in new state-level laws across the U.S. In February, the Republican governor of Texas ordered state officials to investigate parents for child abuse if they allowed transgender children to receive medical interventions such as hormone therapy or puberty blockers. In April, the state legislature in the Republican-dominated state of Alabama passed a law making it a felony for doctors to administer those interventions and others to transgender children. In response, Democratic lawmakers in California introduced a bill that would make their state a “place of refuge” for transgender youths and their families. When the Republican-led state of Idaho enacted new restrictions on abortion in March, Democratic legislators in neighboring Oregon reacted by approving $15 million for out-of-state residents seeking the procedure. And after Texas created a new legal structure last year setting bounties of up to $10,000 for successful lawsuits against people who violate the state’s abortion laws, California adopted the same bounty structure to reward citizens for successfully suing anyone selling assault weapons or guns without serial numbers. What’s going on?

Philip Rocco is an associate professor of political science at Marquette University in Milwaukee, Wisconsin. According to Rocco, Democratic and Republican state officials are intentionally building divergent and incompatible legal systems. The new laws composing these systems are being drafted by networks of ideologically motivated activist groups, pushing their agendas through partisan state legislatures without much opposition or accountability—or any clear relationship to the will of voters. As these divergent and incompatible legal systems grow, Rocco says, the quality of any given American’s life could be more profoundly determined by which state they live in—Democratic or Republican, Blue or Red—with opposing systems meaning more and more acute differences in the jobs people can do, the rights and benefits they enjoy, and even the how long they live.

Michael Bluhm: What patterns do you see emerging in these new laws?

Phil Rocco: One is of new regulations on what people do with their bodies—or what parents allow for their children’s. You see this in increasing state restrictions on abortion in the U.S., as well as in increasing state regulation of medical interventions for transgender children. And now, across both, states are starting to incentivize people to sue others for violating the law. This is a new means of regulatory enforcement. It’s effectively a way of enlisting individual citizens as bounty hunters.

Another pattern, which we’re seeing principally in Republican-controlled states, is legislation that weakens the regulatory role of local governments. Almost half of Republican-controlled states now have legislation that prevents local governments—and this mainly affects urban governments, typically run by Democrats—from passing laws that regulate workplaces by providing paid sick leave or increasing the minimum wage. There’s also a set of regulations that prohibits local governments from enacting regulations that ensure certain health protections.

Bluhm: You mention labor law and health care. Do these new laws tend to focus on certain sectors, or groups, or rights?

Rocco: They’re about rights. Governments in the United States define individual rights and freedoms from government intervention—classic liberal rights. For many years now, particularly since the mid-20th century, a constellation of individual rights and freedoms has been developing in American life through the federal court system—civil rights, women’s rights, rights for gay people, and so on.