An Unprincipled Argument against Democracy on Abortion

J amelle Bouie’s New York Times column defending Roe v. Wade is progressivism in its purest form: contemptuous of democratic self-government, incredulous at the very concept of the rule of law, utterly incapable of stating a principle with any limits, unable to see the weaknesses in its proposed methodology, unwilling to acknowledge tradeoffs or address counterarguments, and promiscuous with changes to the meaning of words themselves in order to obtain the desired results.

Bouie sets out to respond to the argument that Roe was anti-democratic by removing the regulation of abortion from elected state governments and having it dictated by seven unelected Supreme Court justices. The core of that argument, of course, is that the justices have the power to take decisions away from the elected branches only when a supermajority of the people, through the Constitution’s text, have empowered them to do so. Naturally, Bouie does not give even the slightest nod to the idea that whether the Constitution actually authorized this might be relevant to the question. Instead, he attempts four arguments for why it’s supposedly not democracy to give the decision back to state governments.

For the first, he cites Madison to argue that factions can more easily capture state governments than the federal government. (Never mind that Madison was not arguing for stripping state government of all power.) Pro-lifers, in Bouie’s view, are a faction; people who want abortion to be legal all the way to birth are not. But of course even the noisiest faction in a state involves many, many more people than the seven men who wrote Roe.

But let us suppose that Bouie is right that states should be forbidden by the federal courts from enacting any laws not supported by a majority of their citizens — as determined by opinion polls, rather than by periodic elections. Why would that argument be limited to abortion? Why have representative government at all, if only laws passed by popular referendum are permissible? Of course, Roe also forbids states from banning abortion by popular referendum, so a defense of it is not actually an argument for majoritarianism. Conservative policies have often done quite well in popular referenda on topics such as racial preferences, same-sex marriage, bans on noncitizen voting, and public assistance to illegal aliens. Bouie is not proposing that the courts permit any of this, let alone mandate it. There is no principle here other than the progressive idea of supervised democracy: Voters get to have their say, and then their progressive overlords decide which policies they are actually permitted to enact.

There is an additional set of problems with Bouie’s view that federal courts ought to make permanent national public policy based upon opinion polls. Most polls survey, at most, only a few thousand people, thus disenfranchising the millions who would register their vote in an election. Polls can be and often are biased by how the question is framed and whom they survey; they have, in recent years, frequently clashed with the actual outcomes of elections. And the accuracy of polling is an evolving discipline that must continually shift with the public. The Literary Digest reader poll of 1936 famously predicted that Franklin D. Roosevelt would lose to Alf Landon; FDR instead won a colossal landslide. Imagine if we still, today, lived under some constitutional rule made on the basis of a question in that poll. There is a reason why the bar set by the Framers for a constitutional amendment is much higher than “we polled 1,200 likely voters one time.”

That raises an additional problem with polls: Even at their best, they capture only a temporary snapshot of public opinion. But public opinion changes. If it didn’t, we’d still have slavery and child labor. Democracy is an ongoing process, and its advantage over court decisions is that it can respond to repeated shifts in public sentiment.

Bouie also ignores a key feature of representative government: It responds not just to majority opinion, but also to the intensity of opinion on particular issues. That has its drawbacks, as illustrated by all manner of public-spending initiatives which Bouie prefers, but it is frequently a good thing: The people most intensely interested in a question are often the most informed or affected by it. “Faction” is often just another word for a minority group. Democracy should respond to the intensity of preferences, because much of what the government does is to balance the interests of different groups and values. That includes groups who — like pro-lifers — stand up for those who cannot vote.

Bouie’s second argument is that we can’t let states decide important policy questions because democracy in state government doesn’t exist:

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. A pro-Roe electoral majority might exist in Wisconsin, but the state Republican Party has gerrymandered itself into durable control of the legislature; it only needs a minority of voters to win a majority of seats. The same is true in states like Ohio and North Carolina where — according to a New York Times analysis of public opinion data — most adults support Roe. 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 place where democracy happens — and that itself is debatable — then these facts are a real challenge for the pro-democracy case against Roe.

Of course, gerrymandering and all manner of other elite-entrenching shenanigans have been going on for all of American history. Bouie does not suggest any limit to his view that elected state governments should be treated by the federal courts as illegitimate, other than “don’t permit the voters to pick conservative policy.” He identifies no progressive policy or law that should be blocked from taking effect on the grounds of the gerrymanders in Illinois, New York, California, or Maryland, or during the decades of Democratic use of the tactic to control Congress while passing the New Deal, Great Society, and Obamacare.

Bouie’s third argument is that abortion laws cannot be democracy because they limit liberty:

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. . . . There’s a word for this, and it’s certainly not “democracy.” . . . 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.

What does this sound like? Oh, yes, this: “an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”

In reality, deprivations of liberty are pretty much the definition of government and law. Every law we have involves, at some point, armed agents of the state telling you at gunpoint what you can’t do. That’s true even of laws like “don’t rape” or “don’t own slaves” or “don’t abort kids” where your liberty is restricted explicitly to secure someone else’s. And enforcement of this and every other kind of law can swiftly involve the government in quite sweeping and intrusive investigations. Government investigations of child abuse or rape can involve some extremely personal and sensitive inquiries.

What Bouie is arguing for here is liberty, not democracy. Liberty is great! It is why government’s powers should be strictly limited. But has Bouie seen the sorts of powers that progressives give to government to investigate and invade liberty? Is he arguing against vaccine and health-insurance mandates that require the government to obtain private health information? Against gun registries? Against tax audits? Against a Code of Federal Regulations that exceeds 185,000 pages? Has he seen the Democratic agenda on health care, energy, education, investing, or any number of other issues for the past century?

Bouie’s final argument is that “democracy is substantive as well as procedural . . . , a set of values as well as a set of processes,” and that banning abortion degrades the equal citizenship of women. This is, first of all, not much of an argument for taking away the question from the voters and giving it to a small, unrepresentative elite of lawyers to decide. Bouie writes that “to put the right to have an abortion up for debate is to put the bodily autonomy of women up for debate,” but of course, the question is not whether abortion is up for debate, but who gets to resolve that debate.

Bouie also completely ignores not only the equality of the child who can, in his view, be executed at will for any reason, but also the free choices of women:

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. . . . Prisoners represent the most extreme end. They are citizens, but they are not political equals.

This might be a fairer argument if Bouie was discussing women who have been impregnated by the state, just as it would be a fairer analogy if he was discussing prisoners who committed no crime. But he has no room in his field of vision for the idea that pregnancy is, in the vast majority of cases, the outcome of a voluntary act, or that the vast majority of prisoners are in prison because they voluntarily committed a crime. We should, of course, tread carefully before throwing people in prison or limiting their liberty or autonomy. But no matter how few laws a state has, I would always want it to have laws against killing a fellow human being. Does Bouie agree? He doesn’t say. The child, in his view, has no rights the law is bound to respect.

We have democracy precisely so we do not rely on federal judges alone to dictate the answers to such questions.