The Washington PostDemocracy Dies in Darkness

Opinion Minority rule is the real reason Roe v. Wade is dead

(Jabin Botsford/The Washington Post)

In the immediate fallout of the leak of a draft Supreme Court opinion that would strike down Roe v. Wade, many have noted that this decision will be extremely unpopular; polls show that between 60 and 65 percent of Americans say Roe should remain. The draconian laws Republicans are already proposing at the state level could be even more unpopular.

But if those facts allowed liberals to convince themselves this day would not come, they were clearly misguided. The coming nightmare for reproductive rights is in large part a product of minority rule. It’s what Republicans have painstakingly constructed over the course of decades, and it might take just as long to dismantle it — if Democrats can do that at all.

Opinions on abortion have been remarkably resistant to change for the past 50 years. The antiabortion movement’s attempt to convince the public that abortion is murder was a failure, and that likely won’t change in the post-Roe world.

Conservatives know that perfectly well. But the whole point of building the apparatus of minority rule was for moments like this. You don’t have to twist the system in knots and eliminate democratic accountability to do popular things. You do it to stop popular things you don’t like, enable yourself to do things the public doesn’t want, and hold on to power no matter what.

The details should be familiar by now. The Senate gives two votes to every state, so 40 million Americans in California, most of them Democrats, get the same representation as 580,000 Americans in Wyoming, most of them Republicans. That is then levered into the electoral college, which is why the past two Republican presidents took office despite having lost the popular vote.

That (plus unprecedented ruthlessness in refusing to allow a Democratic president to fill an open seat) gets you a conservative Supreme Court supermajority — appointed by presidents who lost the popular vote, confirmed by GOP senators who represent a national minority — enacting a conservative legal revolution the public never asked for.

That court then validates nearly every effort by state Republicans to insulate their own power through voter suppression and partisan gerrymandering. That will enable them to outlaw abortion over the objections of their own state populations, knowing that district lines have been drawn in a way that predetermines the outcome of elections.

It’s a closed loop, an interlocking system that insulates Republicans from accountability.

There are times when Democrats can overcome it, for example by electing governors in swing states such as Wisconsin and North Carolina. But because it’s almost impossible for Republicans to lose their hold on state legislatures, they can hamstring and undermine the governor much as congressional Republicans did to President Barack Obama and will to President Biden if they take control of Congress in this fall’s elections.

Now consider where they’re going now that Roe is apparently dead. Forget about 15-week bans and six-week bans; a couple dozen Republican-run states will probably outlaw abortion entirely, perhaps with a grudging exception to save the life of the pregnant woman, but only in the most dire circumstances.

But even that will not be enough. GOP state legislators are working to ban abortion in other states; in Missouri, one Republican state legislator has introduced a bill to allow anyone to sue over an abortion that occurred anywhere if “sexual intercourse occurred within this state and the child may have been conceived by that act of intercourse.” Bills in Missouri and Ohio would ban abortions to remove ectopic pregnancies, which never result in a live birth but can kill the pregnant person.

And it isn’t just abortions. In the antiabortion movement, most forms of birth control — including birth control pills, Plan B and even IUDs — are widely and wrongly considered “abortifacients,” the moral equivalent of abortion. Once laws outlawing abortion are passed, this is where the movement will likely turn its attention — and Republican legislators who worry only about primary challenges from the right will face pressure to go after birth control.

Meanwhile, the next time Republicans have complete control in D.C., they’ll push for a nationwide ban on abortion. The planning is already underway.

If your response is to say, “That would never happen — it would be too unpopular,” remember, that’s exactly what some said about overturning Roe. The whole point of minority rule is that you don’t have to worry about what’s unpopular.

Part of the sinister genius of minority rule is that if it is constructed with enough care and comprehensiveness, it can be demoralizing to the majority, which sees no way around it, at least in the short term. That then serves to demobilize the majority and further solidify minority rule.

Overcoming that demoralization will require a psychological fortitude on the part of Democrats, and a commitment to do what Republicans did: to work not just for the next election but for a project that will unfold over decades. Even if you don’t get what you want from one president or one Congress, you have to take small steps until you reach your ultimate goal, knowing victory is never assured and will be a long time in coming.

That’s what the people who wanted to outlaw abortion committed themselves to, and now their victory is here. It can be reversed, but it will not be easy. If liberals aren’t willing to wage that long fight, then they truly will have lost.