Some of the victory laps over the Supreme Court’s reversal of Roe v. Wade have included the observation that the pro-choice side will now have to justify its views in the court of public opinion rather than rely on edicts by unelected judges to get its way. In this sense, the Dobbs decision is good for democracy: Something as important as abortion cannot be governed forever by a single court decision with questionable grounding in the U.S. Constitution.
The idea that the government should broadly reflect the values of the majority of the governed is in serious trouble.
But we can’t ignore the juxtaposition of the Dobbs decision with the congressional hearings on the Jan. 6 attack on the U.S. Capitol, a reminder of the continuing threats to the democratic process in the United States. Those threats make it kind of a dark joke when The Wall Street Journal’s editorial board reacts to Dobbs by mocking advocates of legal abortion: “The cultural victories they achieved by judicial fiat will now have to be won by persuading voters. We understand their frustration, but they ought to try democracy for a change.”
The Washington Post columnist Michael Gerson similarly writes:
It’s disappointing to watch elements of the left react to the democratization of the abortion issue by attacking democracy itself. The argument goes: The electoral college gives Republicans—who have lost the popular vote in five of the last six elections—an advantage in winning the presidency and appointing Supreme Court justices. And the gerrymandering of state legislative districts has resulted in a GOP stranglehold on many state legislatures.
Mr. Gerson writes that “whinging” about such things “sounds much like the attitude” of Trump Republicans who refuse to accept the results of the 2020 election. But is it “attacking democracy” to criticize some specific American electoral traditions that are not known or tolerated in most modern democracies?
There is a difference between pushing conspiracy theories about stolen elections and criticizing aspects of our political system that enable minority rule. It is not mere “whinging” to point out that with the reversal of Roe, it is virtually certain that several states will enact restrictions on abortion that most of their citizens disagree with (just as states will fail to enact gun control measures that most of their citizens agree with). “Clear majorities of citizens in purple states that are likely to ban abortion—like Arizona, Georgia, Michigan, Wisconsin and even Iowa—support abortion rights,” write the political scientists Jake Grumbach and Christopher Warshaw in a review of polling data for The Washington Post. In the case of Wisconsin, this is because the Republicans who now control the state legislature have approved gerrymandered district maps that are expected to lock in their majority even if they lose the popular vote.
We can’t ignore the juxtaposition of the Dobbs decision with the congressional hearings on the Jan. 6 attack on the U.S. Capitol.
Ross Douthat, a New York Times columnist, recognizes the tension here. While celebrating the reversal of Roe, he also regrets that the pro-life movement has been allied with “various toxic forces on the right,” including some “hostile to synthesis, conciliation and majoritarian politics.” America senior editor Sam Sawyer, S.J., also welcoming the Dobbs decision, nevertheless points out that the Supreme Court majority that decided it came about through the “dishonest violation of many institutional norms and is part of a pattern of minoritarian governance.” This pattern is enabled, in part, by the overrepresentation of smaller, more rural states in the Senate, an overrepresentation that has gotten worse and worse as the country’s population has grown.
None of this means that the majority is always correct. If both sides of the abortion debate are honest, they can agree that neither the pro-life nor the pro-choice movements have any intention of accepting the opinion of the majority, either at the national or state level, as the final word on the topic. And for good reason: When the Supreme Court struck down state bans on interracial marriage in 1967, it went against overwhelming public disapproval of marriage between people of different races, and it took decades for the public to accept what we now see as the obvious correctness of that decision. By contrast, public opinion on the death penalty has fluctuated greatly over the past century, but that is a reason not to take the majority view at one point in time and consider the matter settled.
There is a difference between pushing conspiracy theories about stolen elections and criticizing aspects of our political system that enable minority rule.
It is also true that we have a representative, not a direct, democracy. The Wall Street Journal editors and others (including the editors of America) who approve of returning the issue of abortion to the states generally mean that state legislators should decide policy, rather than the voters themselves through ballot questions. There is no hypocrisy here, as legislators are supposed to be better able to decide complex issues, and even in a democracy, certain individual rights (including, depending on your point of view, pregnant women and the unborn) are not supposed to be subject to the whims of popular opinion.
But at the moment, state legislatures, with the blessing of the Supreme Court, are growing in power—and the court has just accepted a case that could give state legislatures unchecked powers in running federal elections, perhaps even giving Electoral College votes to presidential candidates who lost the popular vote in their states—and they do not need more champions on op-ed pages. It is the democratic process, and the idea that the government should broadly reflect the values and priorities of the majority of the governed, that is in serious trouble.
For the moment, the erosion of democracy is a bigger threat to proponents of legalized abortion; those who want to restrict or ban abortion have advantages on the Supreme Court and in gerrymandered legislatures so that they do not need to win over a majority of voters in order to change policy. But pro-life Americans are needed in the effort to preserve democracy, and it does not help to dismiss concerns about unequal representation, gerrymandering or new restrictions on voting.
Last month, I cautioned the opponents of Donald J. Trump and the Republican Party not to adopt a “fight fire with fire” approach or to put aside democratic norms for a short-term political victory, lest it becomes impossible to get them back. The country will benefit if the pro-life movement is equally careful.
[Read next: “How do pollsters decide who’s a ‘devout’ Catholic?”]
