One of the more disingenuous arguments for overturning Roe v. Wade (1973) was the claim that it would take the contested social issue of abortion out of the hands of unelected courts and give it to the democratically elected Congress and state legislatures. When Roe was rescinded by the Dobbs decision in June, right-wing columnist Katie Pavlich wrote in The Hill, “Abortion law being returned to the states by the Supreme Court allows Americans to have more of a say and additional opportunities to engage in the democratic process. The overturning of Roe is not only a win for life, but for the restoration of the U.S. Constitution and democracy.”
“Let the voters decide” is a fine principle—but the anti-choice movement has given little evidence that it is interested in winning its position through democratic means. For one thing, the very overturning of Roe is an example of how the Republican Party is increasingly willing to push unpopular minority positions by gaming a political system that is frequently at odds with majority rule. Roe was overturned by a Supreme Court majority of six judges, three of whom were appointed by Donald Trump—who in two presidential elections failed to secure even a plurality of votes, let alone a majority. And all three justices won narrow Senate confirmation from states that make up a minority of the nation. Amy Coney Barrett, for example, was approved of by senators representing 15 million fewer people than the senators who voted against her confirmation. According to polls, Americans opposed overturning Roe by a nearly two-to-one margin.
The fact that reproductive freedom enjoys robust majority support became even more evident after the Dobbs decision took effect. In election after election, the evidence for popular support for abortion rights keeps piling up. In early August, a ballot measure to overturn the right to abortion enshrined in the Kansas Constitution was defeated by a landslide, with 59 percent voting no. This was a stunning result given that Kansas is one of the reddest of red states, with a long history of voting in socially reactionary Republicans. In late August, Pat Ryan’s surprise victory in a New York special congressional election was further evidence that abortion rights—which Ryan had made central to his campaign—were driving turnout and motivating voters. In an interview with The New York Times, Ryan summed up the lesson of his race: “Stand up and fight. Stop pulling our punches. Conventional wisdom is that abortion rights and reproductive rights are a really emotional, very personal topic, but to me that calls even more for being clear, so people really know where your heart is.”
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But just as Democrats like Ryan are embracing the abortion issue to mobilize the pro-choice majority, Republicans are starting to flee the issue. Writing in Salon, Amanda Marcotte took note of the fact that
a whole bunch of Republicans are suddenly discovering their “deeply felt” love of embryonic life isn’t quite so deep as their desire to win their elections come November. GOP campaign websites are being scrubbed of language affirming a candidate’s wish to force 10-year-old rape victims to give birth. Accusations that the over 800,000 abortion patients a year are guilty of “genocide” are being shoved down the memory hole. Candidates, like Peter Thiel-boosted Senate hopeful Blake Masters, once bragged about how they’d ban abortion before the pregnancy test even registers positive. Now Masters is pretending his interest is limited to “very late-term and partial-birth abortion” only.
This Republican retreat suggests that abortion, outside of a few ultra-Republican states, can be defended by democratic means. But, in an utterly unsurprising development, facing the prospect of defeat at the ballot box, the anti-choice movement is starting to have second thoughts—about democracy. On Wednesday, The Washington Post reported that Michigan’s elections board “rejected a voter initiative for the November ballot that would enshrine abortion rights in the state Constitution, a move that sets the stage for a legal showdown at the state Supreme Court.” This rejection was made despite the fact the petition had more than 750,000 signatures. The grounds for the dismissal, made by Republican board members, was trivially procedural: The font on the petition was too tight, so some of the words were squeezed too closely together. The matter will likely be decided by the court.
Such legal maneuvering reveals the shape of things to come. Unable to win abortion bans through democratic means, the anti-choice movement isn’t going to accept defeat graciously. Rather, it will exploit the many avenues the American political system has for allowing a minority to impose its will on a majority.
In a revelatory New York Times column, law professor Mary Ziegler, a veteran analyst of the anti-choice movement, noted that the concept of fetal personhood was enjoying a revival in right-wing activist circles and could be imposed either by executive order or by a future Supreme Court decision.
This strategy appeals to the anti-choice movement and its broader right-wing allies because it can be done without regard to popular will. As Ziegler notes,
given the erosion of democratic norms in the United States, the lack of support for personhood may not matter as much as it ought to. In many states where the public doesn’t support abortion bans, negative partisanship—the deep antipathy people feel for the opposing political party—means that many voters may not punish Republicans even for policies they don’t agree with. Gerrymandering and burdens on the vote make it harder for those who oppose sweeping abortion bans to make themselves heard. A Republican president could lose the popular vote and impose some elements of personhood through executive order. And the Supreme Court may recognize personhood sometime down the road, no matter what voters think.
The legal system is soon likely to become an even more favorable battleground for the right to impose its agenda, thanks to the immense gift of $1.4 billion by plutocrat Barre Seid toward the creation of a new conservative group headed to Leonard Leo, who as cochair of the Federalist Society has been one of the chief architects of the current right-wing court.
In a speech delivered on Thursday night, President Biden did well to warn about the authoritarian threat of Trumpism, connecting it with other assaults on fundamental rights. According to Biden, “MAGA forces are determined to take this country backwards. Backwards to an America where there is no right to choose, no right to privacy, no right to contraception, no right to marry who you love.” Democrats would do well to continue to hit this theme and spell out exactly how the “MAGA forces” (and in fact the larger Republican Party) wants to use the courts to win battles they can’t achieve by democratic means.
