The notion of states as “laboratories of democracy” is generally credited to Supreme Court Justice Louis Brandeis.
“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country,” Brandeis, the court’s liberal lion, wrote in a dissent to a 1932 decision.
One wonders what Brandeis would make of Mississippi today.
‘Perhaps unsurprisingly, health outcomes in Mississippi are abysmal for both women and children.’
— Supreme Court Justices Kagan, Sotomayor and Breyer, dissenting from Dobbs ruling
The travails of residents of Jackson, the state capital, due to the utter collapse of the municipal water system, have been claiming the most public attention lately, what with advice to residents to shower with their mouths closed and to take other steps due to the health hazards of ingesting the water.
But the mad scientist tone of Mississippi policymaking goes much deeper. The state has been experimenting with the social and economic welfare of its citizens — especially its poor and Black citizens — for decades, and not to their advantage.
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Nor have its laboratory experiments come “without risk to the rest of the country.”
One such experiment, the enactment of a harshly restrictive antiabortion law, is the basis for the Supreme Court’s infamous decision in Dobbs vs. Jackson Women’s Health Organization overturning the guarantee of abortion access originally granted in the 1973 decision in Roe vs. Wade.
Decided on June 24, Dobbs already has “unleashed … chaos and cruelty” across the nation, in the words of Harvard law professor Lawrence H. Tribe. About 30 states have enacted or are contemplating antiabortion laws affecting 40 million women of reproductive age, or 58% of women in that category nationwide.
We shouldn’t blame Brandeis for placing what appears today to be a complacent reliance on the wisdom and flexibility of state legislatures in 1932.
That was an era in which a right-wing bloc on the Supreme Court imposed a conservative federalism on state legislative decisions, ignoring local conditions, which Brandeis saw as varying greatly state by state.
Since then, advances in civil liberties and social welfare have come sometimes from states, and sometimes from Congress and presidential administrations imposing federal standards.
“California values,” as its politicians like to proclaim, provided a bedrock on which stood the state’s resistance to federal rollbacks of antipollution and anti-discrimination regulations under then-President Trump. But in other historical periods, less laudable policies originating in California, such as racial discrimination against residents and citizens of Chinese and Japanese ethnic origin, spread nationwide.
In recent years, the most aggressive state-level initiatives have been crafted by conservative statehouses, often in ways that conflict with popular sentiment. They’ve undermined anti-discrimination protections for LGBTQ people and narrowed voting rights. They’ve diminished access to healthcare for women and low-income and minority communities, but expanded access to guns.
Mississippi is a standard-carrier for this approach. Its legislators and governors have made choices that have kept the state mired at the bottom of nationwide rankings in healthcare and economic opportunity.
The state’s median household income of $44,966 in 2020 (according to the Federal Reserve) was the worst in the nation, 11% lower than the second-worst, Arkansas, and more than 33% lower than the U.S. average of $67,521.
In terms of the quality of its healthcare system, Mississippi ranks at the very bottom nationally, in the estimation of the Commonwealth Fund. That’s especially true in the category of reproductive health. Mississippi’s rate of pregnancy-related mortality is the worst in the nation and almost twice the national average. The mortality rate for Black women there is three times the rate for white women. The state has recently ranked among the worst in per capita COVID cases, and its share of fully vaccinated residents, 53%, is the third-worst in the U.S.
A blue-ribbon committee convened by the state Health Department to examine the state’s record recommended that it accept a federal offer to extend Medicaid eligibility to one year after delivery, up from 60 days, an extension accepted by 34 states. Earlier this year, the Mississippi Legislature refused.
It should come as no surprise that Mississippi is one of the 12 states that have refused to expand Medicaid under the Affordable Care Act.
The three dissenters from the Dobbs decision, Elena Kagan, Sonia Sotomayor and Stephen G. Breyer, were scathing about the real-world context of abortion bans. “States with the most restrictive abortion policies also continue to invest the least in women’s and children’s health,” they observed.
“Perhaps unsurprisingly,” they noted, “health outcomes in Mississippi are abysmal for both women and children.” The state’s infant mortality rate is the highest in the country, they noted, amid “some of the highest rates for preterm birth, low birthweight, cesarean section, and maternal death.”
After the Dobbs decision was handed down, Mississippi Gov. Tate Reeves paid lip service to these concerns. “The next phase of the pro-life movement is focusing on helping those moms that maybe have an unexpected and unwanted pregnancy … [and] making sure that those babies, once born, have a productive life.”
History provides no grounds for confidence that Reeves is serious. As the Dobbs dissent observed, Mississippi “has strict eligibility requirements for Medicaid and nutrition assistance, leaving many women and families without basic medical care or enough food.”
Last month, Reeves returned $130 million to the federal government that had been earmarked for temporary rental assistance, calling the program a “socialist experiment.”
Meanwhile, evidence is emerging that some $70 million in state welfare funds for poor families was diverted to recipients including Mississippi native and star NFL quarterback Brett Favre, allegedly for speeches he never delivered. (Favre denies the no-show allegations, has repaid at least some of the fees, and hasn’t been charged with a crime.)
That brings us full circle to the Jackson water crisis. The city is more than 80% Black, an artifact of white flight that began in the 1980s, after its public schools were integrated. The water system has suffered from decades of deferred maintenance and understaffing, resulting in consistent violations of federal water quality standards.
In 2021, when a winter storm left 40,000 residents without drinking water for weeks, the city asked the state Legislature for $47 million for emergency repairs. The Legislature approved $3 million. The Legislature also refused to allow the city to impose a 1-cent sales tax to pay for water and sewerage improvements.
With a full-scale repair of the water system expected to cost about $1 billion, Reeves said this week that he’s open to “privatization” of the system. Often, privatizing public utilities means higher prices and poorer customer service. As it happens, Jackson has experience with the process, and it hasn’t been pretty.
In 2013, the city entered into a $90-million contract with the multinational engineering firm Siemens for water system repairs and the installation of new, ostensibly more accurate, water meters.
According to a 2019 lawsuit the city filed against Siemens, the company guaranteed that the contract would produce $120 million in revenue for the city, effectively paying for itself. (Hat tip to Judd Legum of the online news site Popular Information for pinpointing the episode.)
The city alleged that Siemens had pulled a bait-and-switch, gulling the city into signing a contract lacking that hard-and-fast guarantee. The deal was a disaster, the city said. The water meters were faulty and couldn’t communicate with the data system that generated bills. Some residents received incorrect, sky-high bills; others received no bills for months, followed by bills for multiple months they couldn’t afford.
“The Siemens water system continues to be a disaster for the City of Jackson and its citizens,” the lawsuit stated. “Siemens ultimately guaranteed nothing but financial ruin for the city.” The city sought more than $450 million in damages, but said the ultimate losses over time might come to $700 million.
In 2021, the city and Siemens reached a $90-million settlement — essentially the original price of the contract.
Asked for comment, Siemens sent me the statement it issued at the time of the settlement: “Following a meaningful dialogue between both parties, the City of Jackson and Siemens have reached a mutual and final agreement to settle this issue,” read the statement, which acknowledged that “the project did not end as either party hoped.”
Only a fraction of the $90 million was available for Jackson to fix what was broken: About $30 million was paid to its lawyers, and tens of millions more to cover obligations on the bonds the city floated to pay for the contract and other expenses.
If Reeves or anyone else thinks that turning the municipal water system over to private operators will solve its problems, they should read the lawsuit.
So much for the laboratories of democracy. State-level experiments in today’s America have the potential to destroy the lives and health of millions of people outside any state’s borders, with only federalism to protect them. Louis Brandeis was one of our very greatest Supreme Court justices, but he was also a man of his time. And times have changed.
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