The Washington PostDemocracy Dies in Darkness

Opinion Conservatives want Roe overturned for the sake of democracy? Please.

Associate Justice of the Supreme Court Samuel A. Alito Jr. (Jabin Botsford/The Washington Post)
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While antiabortion activists may be popping champagne over the Supreme Court’s imminent dispatching of Roe v. Wade, in the heart of the Republican establishment the response has run from “Let’s talk about something else” to “This is not really a big deal.” It’s not hard to see why: Republicans know their maximal opposition to abortion rights is extremely unpopular.

Which is why many of them are trotting out old arguments that seek to characterize what they’re about to do as fundamentally moderate and deferential to the political parts of our system — a return to a supposedly calmer and more accountable past as opposed to a radical rollback of rights. Overturning Roe, they say, only puts the question where it belongs: in the hands of our democracy.

This is profoundly disingenuous. If nothing else, they at least ought to be honest about what it means now that they’re about to achieve their long-standing goal.

The first part of their argument is that the Supreme Court’s decisions in Roe and Planned Parenthood v. Casey made abortion into an unnecessarily contentious issue. Justice Samuel A. Alito Jr. said as much in his draft ruling:

And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.

This argument fails as both a statement of what the Supreme Court is for and as historical analysis. The court doesn’t decide questions of rights in order to “settle” political disputes, even if the justices may sometimes hope that their rulings would do so.

That’s not their job. As conservatives always tell us when they pontificate on the importance of “originalism,” the role of the justices is to channel the wisdom of the Constitution and let the political chips fall where they may.

The nature of basic rights, moreover, is that we don’t put them up for a vote. The Supreme Court has many times in the past protected rights in ways that were unpopular, or at the very least politically contentious, but they did so because they judged those rights to be fundamental, whether it’s free speech or due process or the right to worship as you choose.

As for the idea that conservatives object to the courts substituting their judgment for that of the people and their elected representatives, they themselves ask the courts to do just that all the time.

Jason Willick

counterpointOverturning Roe would make America more democratic

They’re constantly filing lawsuits begging the Supreme Court to overrule voters and elected officials when they don’t like policy outcomes democracy produces, whether it’s the Affordable Care Act or civil rights for gay Americans or environmental protections. Every time the conservative supermajority on this court does so — which it has many times already, and will surely do again many more times in the near future — Republicans cheer.

When the court struck down Washington, D.C.’s handgun ban in 2008 by declaring for the first time in two centuries that the Second Amendment contained an individual right to own guns, conservatives didn’t say, “This ruling will only inflame this contentious issue! The people should decide!”

No, they celebrated it. And if the court makes it impossible for states and localities to pass any reasonable regulations on guns at all, they’ll celebrate again.

Furthermore, the idea that we would have reached a quiet and respectful consensus on abortion had the court not stepped in is preposterous. There are deep and profound reasons, both philosophical and political, why this issue is so contentious.

It became so as part of a backlash against the women’s movement and the threat it posed to conservative ideas about women’s proper place as subservient to men. In the late 1970s, the religious right made opposition to abortion central to its organizing after it became clear that what had previously animated its adherents — preserving racial segregation — had become too politically toxic.

There’s much more to that story, but no matter what the Supreme Court did or didn’t do in 1973, abortion politics were going to be intense and passionate — just as they will continue to be if and when Roe is overturned. Chances are that this decision will make abortion politics even uglier and more vicious, as Michelle Goldberg explains. That likelihood won’t convince conservatives that overturning Roe was a bad idea; they’re fine with more contentiousness if they get the outcome they want.

Even as conservatives argue that overturning Roe enhances democracy, Republicans are trying to impose their view of abortion on the whole country, whether everyone wants it or not. GOP state legislators are trying to come up with ways to keep women from seeking abortions in blue states where it will be legal. Congressional Republicans are planning to pass a nationwide abortion ban the next time they control Congress and the presidency.

The truth is that conservatives just don’t think women have a fundamental right to bodily autonomy — for them, it’s not a right at all. They do, however, believe that even the most rudimentary zygote has a right to be carried to term — a right that overwhelms almost all considerations of the welfare of the woman carrying it.

They’re free to make that case. But please, don’t tell us they want Roe overturned because they’re so committed to the process of democracy.