A significant part of the case against Roe v. Wade is that the Supreme Court was wrong to intervene in 1973 to recognize a constitutional right to abortion while the democratic process was still playing out. Better, instead, to have left the issue to the states — to voters and elected officials — who could then tailor their laws to their respective communities.
Justice Samuel Alito takes note of this in his draft opinion overruling Roe.
“In some states,” he writes, “voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized.” Voters in other states, he continues, “may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ ” He concludes that “Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
The end of Roe, in this telling, is a victory for democracy against judgeocracy.
That might be true, if Americans lived with fair and representative institutions. But they don’t. And even if they did, there’s more to democracy than just voting or the process of making a law.
Which is to say that the pro-democracy argument against Roe v. Wade and the constitutional right to have an abortion falters on a few key realities. The first relates to democratic government, or the lack thereof, in the states. The second relates to the expansion of state power inherent in any effective law against abortion. And the third concerns the intimate relationship between bodily autonomy and political equality.
On the first point, let’s begin with a little Madison. Among the most famous essays in American political thought is Federalist No. 10. In it, James Madison makes his case for the “extended republic” against naysayers who argue that the United States is too big to be a functional country with a representative government.
His argument, in brief, is that the smaller the republic, the more acute the “violence of faction” (defined here as a group united by “some common impulse of passion or of interest” and “adverse to the permanent and aggregate interests of the community”) to its citizens.
“The smaller the society,” Madison writes, “the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.”
He concludes that if you “extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and act in unison with each other.”
Madison’s point is that a federal union will be less vulnerable to the “mischiefs of faction” than the states it comprises, that “the influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states.”
Now, Madison’s theory isn’t airtight (mostly because it doesn’t anticipate the emergence of national political parties), but it isn’t wrong either. It is easier for narrow factions to win power at the state level than for them to win control of the federal government.
And this, in essence, is what has happened with abortion.
Last year, in a review of public opinion data, the Pew Research Center found 14 states where a majority of adults agreed that “abortion should be illegal in all or most cases.” State legislatures in each may well outlaw the practice if the Supreme Court overrules Roe v. Wade. But so will legislatures in states where a majority of adults support legal abortion in all or most cases. Fifty-six percent of Florida adults, according to Pew, support the status quo under Roe. Despite this, Florida lawmakers have already passed a 15-week abortion ban. A similar situation exists in Oklahoma, where 51% of adults support the right to an abortion in most cases but where the Republican governor just signed a far stricter ban into law. Then there are states — like Arizona, Michigan and Wisconsin — where pre-Roe bans may take immediate effect if Roe is overturned.
But, Alito might say, if voters do not want their states to ban abortion, then they can elect representatives who will then take steps to protect it.
That’s not so simple. Thanks to Alito’s own votes and opinions (and those of his conservative colleagues) in Shelby County v. Holder, Rucho v. Common Cause and Brnovich v. Democratic National Committee, state legislatures have nearly free rein to restrict voting, gerrymander in a hyperpartisan fashion and otherwise insulate themselves from democratic accountability.
In other words, there are a number of states — home to tens of millions of Americans — where voters may not actually have the power to elect lawmakers to protect the abortion rights they say they want. If states and state legislatures are supposed to be the places where democracy happens — and that itself is debatable — then these facts are a real challenge for the pro-democracy case against Roe.
Next is the matter of the abortion bans themselves.
Although anti-abortion activists insist that they intend only to penalize providers and clinics, lawmakers in Republican-led states have already introduced bills that would criminalize patients as well. But even if that weren’t the case, there’s simply no way to enforce an abortion ban without the state intruding deeply into women’s lives.
Think about what it would take to establish that someone had an illegal abortion. The state and its agents would need access to everything from search results, call histories, text messages and medical records to bank statements, social media posts and location data. It would need to turn its attention to anyone who may have helped, friends and family included. (To this point, the Texas bounty law extends legal liability in exactly this manner.)
The state would need to treat the womb — any womb — as a potential crime scene, with anything other than a healthy birth as evidence of a possible crime. A miscarriage or stillbirth would have to invite the same scrutiny as an abortion. There is no other place a total ban can go. Indeed, this kind of scrutiny is already part of daily life for many women, especially those who are either poor, nonwhite or both. The criminalization of pregnancy is not new, but it is poised to get much worse.
There’s a word for this, and it’s certainly not “democracy.”
Which brings us to the final problem with the idea that a world without Roe is somehow more democratic. Democracy rests — on paper, at least — on the idea of political equality: that all citizens have equal standing and equal say when it comes to representation and political decision-making.
But equal standing is undermined and eroded when the state can effectively seize your person for its own ends — that is, when it can force you to give birth. And the erosion of political equality has social consequences; it leads to disregard and disrespect, to treating the people in question as a subordinate class.
To put the right to have an abortion up for debate is to put the bodily autonomy of women up for debate. There’s no other way to spin it. It’s just the nature of the thing. And to put the bodily autonomy of women up for debate is to degrade their citizenship, their social standing and their political equality.
Assuming Roe is overturned, there may be more legislators casting votes over the right to have an abortion, but that’s not the same as more democracy. Just the opposite: States that ban abortion will undermine the values of democracy and curtail the liberty of their citizens. Subjected to surveillance and criminal scrutiny, people who give birth in those states — and those who support their right to privacy and bodily autonomy — will live with a degraded form of citizenship.
Democracy is substantive as well as procedural; it is a set of values as well as a set of processes. Our system can and should be much more representative than it is. But even if it were, a democracy that allows this strict control of reproduction — that curtails the rights of its citizens in this manner — isn’t worthy of the name.