Last month, the US Supreme Court ruled that there is no constitutional protection for abortion, overturning the nearly 50-year precedent established in Roe v Wade. In the 6-3 decision, Dobbs v Jackson Women’s Health saw the conservative majority determine that the Mississippi law prohibiting abortions after the fifteenth week of pregnancy could be upheld, not because it was consistent with precedent established by the 1973 Roe case, but because Roe v. Wade itself was wrong.
The decision is at odds with what a majority of people in the US support. The percentage of people advocating for a right to abortion diminishes the later in gestation, but polls consistently show that overturning Roe goes against American public opinion. The Supreme Court, appointed for a lifetime and confirmed by the Senate, is the least democratic branch of the federal government. Its role has never been to make decisions based on public opinion polls — rather, the judicial branch of the government is supposed to be deliberative and above the fray of partisan politics. And yet, it has ruled in a way that greenlights forced pregnancy, striking down a protection that had fit within the right to privacy. Does this case point to a failure in the structure of the Constitution or a broken democracy?
On a superficial level and on its own, no. First, the decision in Dobbs says the matter of abortion is one for states to decide. Allowing state and local politics to sort out these questions means a more direct democracy than ruling at the federal level. Further, this is in keeping with many countries, including Australia, that leave the matter of abortion up to states. For instance, New South Wales Parliament decriminalised abortion in late 2019.
Second, millions rejoiced in the success of the democratic strength of the US Constitution when Dobbs came down. After effective mobilisation, leveraging electoral politics to shape the court, they were delighted with the victory. For these citizens, the Dobbs decision is a death knell for the nation-wide legal slaughter of the unborn. It protects the rights of “the unborn human” to use the language of the Mississippi law at the heart of the case. Many conservative religious voters held their noses as they cast ballots for Trump in 2016, disgusted with his personal character and conduct but hopeful he’d appoint conservative justices who would overturn Roe. For these voters, the system – the US Constitution, the democracy – finally course-corrected in what was a huge answer to decades-long fervent prayer.
Third, while it’s unusual for the Supreme Court to overturn precedent in such a dramatic way, it is itself not unprecedented and not outside the Court’s prerogative. In the most well-known example of this, the Court overturned 50 years of precedent that gave legal approval to racial segregation with the 1954 case of Brown v. Board of Education of Topeka, Kansas. That said, it is true that several sitting judges have testimony assuring senators that they thought Roe was settled precedent when asked about abortion at their own confirmation hearings.
However, each of the above loses substance if we consider the historical and racial contexts of this decision. In some states, advocates of bodily autonomy and a right to abortion have quickly worked to put abortion on the ballot. In Michigan, for instance, people have collected a record 750,000 signatures to vote in November on an amendment to the state constitution that would ensure a broad protection for reproductive freedom for all. But more broadly, sending the question to states is hardly more democratic when the Supreme Court has greenlit laws that make it harder for people to vote. In Shelby County v Holder (2013) the Court hollowed out the Voting Rights Act, stopping the federal government from intervening if states make discriminatory election laws. Republicans have subsequently enacted voting restrictions that include closing polling places in Black communities. In the 2019 case Rucho v Common Cause, the Court acknowledged that partisan gerrymandering was “incompatible with democratic principles,” but then gave its approval to such measures, ruling that federal courts could not review such district-making. Given the consequences of these decisions, leaving questions of reproductive health to states hardly means a better, stronger democracy.
While it’s true that many white Protestants and Catholics flexed political muscle, formed a powerful protest movement, and rejoiced together at the news of Roe’s reversal, 75 percent of Black Christians in the US support safe, legal access to abortion. Black mothers in America are three times more likely to die in childbirth than white women, and the restrictions on abortion access – enacted with trigger laws that went into effect with this ruling – disproportionately burden Black and Latinx mothers. White nationalist groups, meanwhile, have flocked to the anti-abortion cause as they promote a version of a white, patriarchal family. If the victory is for the powerful, the white, and well-heeled but not for the structurally disadvantaged then it’s not a win for democracy more broadly.
Similarly, on the third point above about occasions that called for overturning precedent, in the Brown case, the Supreme Court ruled unanimously (9-0) that racial segregation violated the Fourteenth Amendment. For the previous five decades, states had been out-doing one another with draconian, punishing ways to enact white supremacy through mandating separate facilities for Blacks and whites. In this important reversal of precedent, Chief Justice Earl Warren wrote that the doctrine of “separate but equal,” which had sanctioned Jim Crow segregation since the 1896 case of Plessy v Fergusson, had to be overturned because “separate educational facilities are inherently unequal.” The Dobbs decision is unlike Brown in almost every way. Brown overturned precedent to move the country in a direction that supported racial integration, expanded access, extended the protection of rights to minority groups, enjoyed unanimous support of the justices, and displeased white supremacists. Dobbs reverses precedent with a 6-3 majority, allows for restrictions that disadvantage poor and minority groups, and satisfies demands of white nationalists. The contrast points to powerful nation unwilling or unable to protect its less privileged – a danger to democracy if ever there was one, and international audiences are taking note.
Indeed, the UN High Commissioner for Human Rights, Michelle Bachelet has said this decision takes away bodily “autonomy from millions of women … in particular those with low incomes and those belonging to racial and ethnic minorities, to the detriment of their fundamental rights.” After all, it’s a ruling that permits forced births, limits the health care of people who can become pregnant, paves the way for the criminalisation of people who have miscarriages, and burdens, rather than protects, vulnerable, minority populations. And on these counts, it weakens the principles of a free, democratic society.