Abortion Will Not Be Sent Back to the States

Republican jurists invoke democracy in preparing to overturn Roe v. Wade, but democracy functionally doesn’t exist in much of the country.

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When Amy Coney Barrett was confirmed as Donald Trump’s third appointee to the Supreme Court, Roe v. Wade’s fate was sealed. The only remaining question was the execution method. Last Wednesday’s oral arguments about the constitutionality of Mississippi’s ban on all abortions after 15 weeks strongly suggest that Roe will be dispensed with with a quick shot to the head next June. Justices Barrett and Kavanaugh showed strikingly little interest in the “compromise” solution floated by Chief Justice John Roberts, and the five votes to overrule Roe outright appear to be there.

Anticipating the backlash this will produce, Kavanaugh suggested that overruling Roe was in fact a moderate compromise: The Court would be remaining “scrupulously neutral on the question of abortion.” This will be one of the lines Republicans use to downplay the aftereffects of ending the constitutional right, claiming that it will simply return the issue to “various state legislatures working their will.” But these moderate-sounding claims are deeply misleading. The democratic process in many respects is stacked against supporters of reproductive freedom, and congressional Republicans are unlikely to simply “send the issue back to the states” but will probably act to restrict or even ban abortion the next time they get control of the federal government.

The most obvious rejoinder to reassurances about the virtues of returning abortion to the “democratic process” is that the interest women have in not being coerced to carry a pregnancy to term is properly protected under well-established Supreme Court doctrines protecting the autonomy of individuals to make intimate choices involving sexuality and childbirth. The anti-Roe argument is particularly hard to take from a representative from the state of Mississippi, which while trying to place draconian legal restrictions on pregnant people does shockingly little to help parents once they’ve given birth. Roe should be reaffirmed, not because Supreme Court precedents are sacrosanct but because it was correctly decided in the first instance.

But since this line of reasoning has no chance of prevailing under the current Court, it’s worth noting that the argument about the “neutrality” of overruling Roe fails even on its own terms. In a properly functioning democratic system, the popularity of Roe and the pro-choice position would protect reproductive rights in most jurisdictions even without Roe in place. But the Constitution has numerous anti-Democratic mechanisms which currently work in favor of Republicans who oppose abortion rights, and the same Supreme Court justices who tout the alleged democratic benefits of overruling Roe have acted to further undermine the democratic process.

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The biggest potential danger for Republicans in a post-Roe world is that they would overreach, passing unpopular abortion bans in closely contested states, undermining their ability to compete in those states and to assemble national majorities. The confounding factor, however, is that many swing states have virtually abandoned competitive elections. States like Wisconsin, Pennsylvania, Michigan, North Carolina, and Georgia are so heavily gerrymandered that it is essentially impossible for Democrats to win control of the state legislature even if a clear majority of the state’s voters prefer them. In the wake of the Supreme Court’s appalling decision to refuse to stop even the most extreme partisan gerrymanders, these maps are about to become even less fair. By simply winning a single gubernatorial election, Republicans in those states can enact abortion bans that are beyond the reach of the state’s voters for the foreseeable future even if they prove to be highly unpopular. This is not “democracy” in any meaningful sense. Admittedly, the prospect of abortion being banned will be a powerful argument for incumbent Democratic governors, but increased odds of victory don’t guarantee winning every election irrespective of the political context, particularly in an era of high polarization and a relatively small number of swing voters. In addition, 22 states (including several purple ones like Arizona, Michigan, and Wisconsin) have “trigger” laws or old laws on the books that would restore abortion bans as soon as Roe is overruled, and these bans would remain in place as long as Democrats don’t control the state legislature.

The same issue exists at the national level. Overruling Roe on a party-line vote after playing constitutional hardball to secure a 6-3 majority will be a net negative for a Republican Party that has already lost the popular vote in seven of the last eight presidential elections. But the problem is that under the increasingly anachronistic American constitutional system and exacerbated by aggressive gerrymandering, Republicans don’t need majorities to win the House of Representatives or the Electoral College. And with educational polarization increasing, Republicans don’t need close to a national majority to win control of the Senate. The same anti-democratic mechanisms that produced a Supreme Court that represents a very unpopular political agenda insulates Republicans from much of the potential backlash.

There’s also no reason to think that abortion will actually be left to the states. Kavanaugh actually departed from the usual party line when he asserted at oral argument that overruling Roe would “leave the issue for the people of the states or perhaps Congress to resolve in the democratic process” (my emphasis). Despite rhetorical feints at the virtues of federalism, Republicans have passed national abortion bans before and they will again. No House Republicans support abortion rights, and only two Senate Republicans (Susan Collins and Lisa Murkowski) do. With Republican dominance of rural areas making a substantial Senate majority possible, Republicans are likely to pass national regulations of abortion and perhaps even a national ban when they get the chance, and they need only to hold onto the Senate to stop these laws from being repealed. Democrats may hope that the filibuster will stop major national regulations, but everything about Republicans in the Mitch McConnell era suggests that they will not let procedural norms stop them from doing something a majority of the Republican conference is strongly determined to do.

While Republicans will claim to be respecting democracy when Roe is overruled, it will be belied by their lack of commitment to democracy across politics at the state and federal level. This will make the impact of overruling Roe all the more devastating. And residents in blue states shouldn’t feel complacent—Republicans in Congress will now be coming for your reproductive rights too, and the odds are rigged in their favor.

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