“It is time to heed the Constitution, and return the issue of abortion to the people’s elected representatives,” Justice Samuel Alito wrote in his ruling last June overturning Roe v. Wade.
Such democratic sentiment was a staple of the abortion debate long before the court’s Republican majority overthrew Roe with its ruling in Dobbs v. Jackson Women’s Health Organization. After all, who were these unelected judges making decisions for the American people? Contentious, complicated issues belonged in state legislatures, where elected representatives, close to the people, subject to their influence and electoral veto, would render a more judicious outcome.
In a concurring opinion in Dobbs, Justice Brett Kavanaugh declared that the court would no longer meddle in the debate. “Instead, those difficult moral and policy questions will be decided, as the Constitution dictates, by the people and their elected representatives through the constitutional processes of democratic self-government.”
One year after Dobbs, how is all that “democratic self-government” going?
In Wisconsin, the reversal of Roe left the state subject to an 1849 law banning abortion outright. The state legislature, which is dominated by Republicans as a result of one of the most extreme gerrymanders in the country, has not overturned the 1849 law and has rejected calls to legalize abortion. In March, some Republican Assembly members proposed modifying the 1849 ban to create exceptions, but only for rape and incest and to “clarify” when doctors could perform an abortion to save the life of a mother. Both the Democratic governor and Republican Senate majority leader declared the proposal a nonstarter.
The legislature’s proposal was in no way a response to the will of the people. In a decade of polls taken prior to the Dobbs ruling by Marquette University Law School, roughly 60% of Wisconsin voters regularly said abortion should be legal in all or most cases. In a poll of likely voters taken in Wisconsin last September, only 37% supported a ban with exceptions for rape, incest and the life of the mother. Only 5% said they wanted a total ban.
The irony, of course, is not only that the Republican legislature, “the people’s elected representatives,” don’t care what the people want. It’s that the legislators are insulated from electoral consequences for their failure to represent the whole public. The state’s legislative maps are expressly designed to deliver Republicans almost two thirds of legislative seats with about half of the overall state vote. The outlandish gerrymander that makes it possible to disenfranchise so many voters was blessed by none other than Alito and four other Republican appointees to the Supreme Court.
How are “the people’s elected representatives” faring in delivering popular sovereignty on abortion elsewhere?
Republicans in Ohio approved a ballot measure – scheduled for August when turnout is expected to be low – to raise the threshold for passing statewide ballot measures from a simple majority to a super majority of 60%. As the Associated Press reported , the August measure “is aimed at thwarting an effort to enshrine abortion rights in the state’s constitution this fall.” The move to seize power from the people is also backed by the gun lobby, another minority faction that relies on Republican legislators to enact unpopular laws.
Elsewhere, Missouri Republicans are eager to counter the popular will in similar fashion, as are Republicans in North Dakota. Republicans in Arkansas have already succeeded in making the ballot initiative process more cumbersome in order to reduce the influence of voters.
Roe v. Wade always struck me as a pretty sketchy act of constitutional legerdemain. But as a political compromise it was both brilliant and far more credible than the current Supreme Court’s return of power to “the people’s representatives.” Roe acknowledged the nation’s overall ambivalence about abortion while giving women the power to decide on an individual, case by case, basis.
Roe was also popular. It still is. In a Pew Research Center national poll last fall, 62% said abortion should be legal in all or most cases; 57% disapproved of the Supreme Court overturning Roe, with 43% strongly disapproving.
Alito’s co-partisans in state legislatures do not appear terribly interested in what individuals, let alone “the people,” think about abortion rights or much of anything else. Time and again the Republican Party has shown it is committed to imposing minority rule, replacing “the people,” the polyglot of America, with the chosen minority that is MAGA.
Government of the people, by the people, for the people? One year after the momentous overturning of Roe, returning the issue of abortion to the people’s representatives has proved to be just another joke on democracy.
FRANCIS WILKINSON is a Bloomberg Opinion columnist covering U.S. politics and policy. Previously, he was an editor for the Week, a writer for Rolling Stone, a communications consultant and a political media strategist.
