‘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.
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 1850 population of Wisconsin was 305,000.) The 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.
This is 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 percent of Wisconsin voters regularly said abortion should be legal in all or most cases.
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 percent. 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. Alito’s co-partisans in state legislatures do not appear terribly interested in what “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.
