Last night, I ventured down to the Supreme Court — just a 30-minute walk from my house — to witness the protests that were gathering in response to the bombshell Politico leak suggesting that the Court intends to overturn Roe v. Wade. It was an . . . interesting crowd:
https://twitter.com/njhochman/status/1521309945970532352
https://twitter.com/njhochman/status/1521323289259483136
https://twitter.com/njhochman/status/1521319849850548224
But one interaction I had is worth addressing further. In an interview, a reporter from a local TV station asked me whether I had any qualms about the fact that a court of “majority white men” was going to potentially overrule the will of the people. This is a standard pro-choice talking point — that “powerful white men” seeking to overturn Roe are engaged in a fundamentally anti-democratic project. As the progressive writer John Ganz wrote in a Substack post today, titled “The Slow and Sudden Death of Majority Rule: Thoughts on Roe v. Wade”:
Polls consistently show a majority of the American public in support of abortion rights and against the overturning of Roe v. Wade, yet, with the astonishing news last night, we appear to be on the precipice of abortion becoming illegal in most of the states in the Union. The laws already in place—or to be triggered immediately after Roe is struck down—are not mere “abortion bans,” but cruel exactions, intended to criminalize and punish women. How is this possible in a democratic nation of millions? The Conservative Movement played the long game and worked tirelessly, for decades, on controlling the least democratic of our constitutional institutions: a council of nine lifetime-appointed judges.
Yet there’s still plenty of blame to go around. Democratic-controlled legislatures have failed to codify abortion rights as positive law, despite the public’s support for it. For decades, they have left the fate of the country in the hands of a tiny minority they hoped would behave cautiously and wisely, according to certain notions of legitimacy. The last 7 years should tell us all we need to know about “certain notions of legitimacy.”
First, let’s just quickly dispense with the “white men” talking point that was echoed by the local reporter I chatted with last night:
https://twitter.com/njhochman/status/1521507810282176513
But more fundamentally, on the question of “democracy,” it’s important to note that — as I pointed out in that tweet — Roe v. Wade was, by definition, a radically anti-democratic decision. It invalidated the will of the people in almost every state in the country. As I wrote back in December, in response to Stephen Colbert’s asinine claim that a decision to overturn Roe would mean that “we don’t live in a democracy”:
Let’s get this straight. Nine unelected judges overturning abortion laws in almost every state in the Union is “democracy,” but the same judicial institution handing decision-making power on the issue back to the democratically elected legislatures in said states is anti-democratic.
This is, of course, exactly wrong. Just to paint you a picture of how truly anti-democratic Roe was: Prior to the 1973 ruling, 30 states had bans on abortions in all instances. Sixteen states had bans with exceptions for rape, incest and the health of the mother. Three states — Hawaii, Washington and Alaska — allowed abortions, but only for residents. Only New York allowed abortions for out-of-state and in-state women, but even the liberal Empire State capped its permissiveness at 24 weeks, except if the mother’s health was in danger. (At the time, that gave New York the gruesome distinction of having “the most liberal abortion law in the world,” in the words of the pro-abortion advocate Dr. Alan Guttmacher.)
Roe changed all of that. With a sweeping 7–2 ruling, the Burger Court invalidated the abortion bans passed by actual democracy — elected representatives in state legislatures across the country — in the vast majority of states.
If the reports of Roe’s imminent demise are true, actual American voters will get to decide on abortion law for the first time in almost 50 years. It’s understandable that such a prospect would be terrifying to pro-choicers who have grown accustomed to their views on the issue being insulated from democratic accountability. But their sudden concern for “democracy” is, to put it lightly, ironic. The lady doth protest too much, methinks.