The five Supreme Court justices who voted to overturn the constitutional right to abortion last year presented themselves as great defenders of democracy. The cornerstone of their arguments in the Dobbs v. Jackson Womans Health Organization decision was that the courts earlier affirmation of a right to abortion, enshrined in Roe v. Wade (1973) and reaffirmed in Casey v. Planned Parenthood (1992), improperly settled by judicial fiat a matter that required deliberation by voters and lawmakers. Writing for the majority in Dobbs, Supreme Court Justice Samuel Alito insisted,The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.
Alitos claims can be countered by both legal and practical arguments. On the legal side, it is not the case in the American constitutional order that issues of fundamental rights belong to the democratic process rather than the courts. Using Alitos logic, one could just as easily overturn Supreme Court cases affirming a constitutional right to birth control (affirmed in 1965s Griswold decision), to marry people of different races (1967s Loving decision), or to marry people of the same gender (2015s Obergefell decision). The fact that Alito went out of his way in Dobbs to assure readers that Griswold, Loving, and Obergefell would not be touched indicates a judicial bad conscience. The justice protested too much precisely because hes aware that the logic of Dobbs put many other constitutional rights in jeopardy.
But there is a more practical objection to Alitos reasoning. As recent history has shown, American democracy is a ramshackle affair where majority rule is thwarted by the systems many veto points and the structural empowerment of certain minorities (the Electoral College, the Senate). These features render the system vulnerable to manipulation by powerful interest groups willing to roll back voting rights or use gerrymandering to achieve antidemocratic results. Indeed, the very court that decided Dobbs is evidence of a deeply flawed democratic system: Three of the five justices who voted to overturn Roe (Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett) were nominated by a president who in 2016 lost the popular voteand they were confirmed by Senate majorities that actually represented fewer voters than the senators who voted against their confirmation. This is because Republican senators tend to represent states less populous than their Democratic counterparts do.
Since Dobbs, weve had a test case for how the democratic process deals with abortion. And the results of that test give the lie to the claim that Dobbs was an affirmation of democracy.
Reproductive freedom is very popular, which buoyed the Democrats in the midterms and also led to victories in referendums even in very Republican states (notably Kansas). Yet the anti-choice side has not responded to these democratic loses by simply accepting the popular will. Instead, it has redoubled its commitment to limiting reproductive freedom by means fair or foul. This has often meant thwarting the democratic process, both by limiting voter power in relation to abortion and by waging legal warfare.
In February, Pew Charitable Trusts reported: Roused by voters recent endorsement of abortion rightseven in conservative statesRepublican legislators are ramping up efforts to make it tougher for citizens to change laws or amend state constitutions through ballot measures. Pew cited efforts to make ballot measures harder to pass in Ohio, Florida, and Missouri and, summing up these changes, observed, Some of the GOP proposals would set new signature-gathering rules, making it harder to place an initiative on the ballot. Others would require a 60 percent supermajority of state voters, instead of a simple majority, to approve a measure.
Journalist Jessica Valenti, in a Substack post from early March, noted that Mississippi lawmakers have joined this trend and been unusually frank in admitting their worry that voters, unless restrained, will use the ballot box to restore reproductive freedom.
Nor have right-wing judgesa formidable presence in the courts thanks to eager court packing by Republican administrationstaken to heart the idea that abortion should now be settled by the democratic process at the state level. Rather, the right-wing judiciary, aided by a well-financed legal infrastructure, is adopting innovative arguments to limit reproductive freedom even in blue states. Guardian columnist Moira Donegan recently reported that US district court judge Matthew Kacsmaryk, one of former president Donald Trumps most reactionary nominees, is signaling that hes ready to uphold arguments for an injunction to remove FDA approval of mifepristone, a drug used in the majority of abortion in the United States.
Vox reporter Rachel Cohen reveals a further example of legal radicalization: the development of an innovative legal doctrine that once legal injunctions are issued, they should have the full force of law even while cases are being appealed. An aggressive wing of the anti-abortion movement, Cohen writes, has been advancing the idea that abortion providers could still be held liable for pregnancies they help terminate under restrictive state laws, even if the law is blocked by the courts when the abortion occurs.
Cohen observes that this doctrine has gained a foothold in the legal system thanks to the 2021 passage in Texas of SB 8a bill that allows private citizens to enforce the states six-week abortion ban through civil litigation and receive a cash bounty if theyre successful. As Cohen explains, SB 8 law also includes a provision that says an individual cannot cite as a defense any court decision that was later overruled on appeal or by a subsequent court. Drexel law professor David Cohen called this SB 8s sword of Damocles provisionhanging over the heads of abortion providers even in the event a court provides relief from an anti-abortion law.
The intent of this legal doctrine is to create a chilling effect so abortion providerspharmacists as well as doctorsare afraid to offer their services even when it would be legal to do so. The success of the chilling effect can be seen in the recent retreat of Walgreens from its promise to make abortion pills available nationally.
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What unites all these anti-choice efforts is that they challenge the ability to use the democratic process to protect reproductive rights.
The best response to this antidemocratic movement is an insistence on the supremacy of the peoples will. In 2022, Democrats did well in the midterms thanks to popular support for reproductive rightsand also to cogent arguments that Republicans represent a threat to democracy. In 2024 and subsequent elections, Democrats could argue that these two issues are one: Republicans threaten democracy because they want to push through wildly unpopular laws, including abortion bans. Democrats could ask the voters for a mandate to restore democracy to preserve reproductive freedom (and other parts of their agenda). This means that they would have run on the promise that if voters give Democrats a strong trifecta, the party will rebalance the courts and use jurisdiction-stripping to limit the powers of right-wing judges.
Commitment to an agenda of democracy and reproductive freedom would also require a promise to actually use the powers of Congress to defend abortion rightssomething Democrats have been loath to do. As Jeannie Suk Green recently noted in The New Yorker,
the proper target for pro-choice complaints is Congress. It has not managed to pass the Womens Health Protection Act, which would establish a federal statutory abortion right to replace the constitutional right that the Court removed. And it has never repealed the Comstock Act, leaving us in the situation where nineteenth-century sexual morality now shapes the twenty-first-century abortion debate. Still, as the branch constitutionally empowered to make laws for the nation, Congress should, at the very least, amend the statute to make it clear that drugs can be mailed for lawful abortions.
Democracy and reproductive freedom are potentially winning issuesbut only if Democrats offer more than just rhetoric. The anti-choice movement is an extremist threat to American democracy. To counter it, Democrats have to be as radical as their foes.
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The War Against Abortion Rights Is Also a War Against Democracy - The Nation