WASHINGTON — If the question was left to Americans to decide democratically, abortion would remain legal in the U.S.
But the Supreme Court appears ready to overturn the 1973 Roe v. Wade abortion-rights precedent, and an apparent congressional majority that supports enshrining abortion protections in law expect its vote on the matter next week to fail.
Huh? How’s that possible in a place that brags about being the world’s oldest democracy?
A big part of it is that the U.S. system, through design and manipulation, essentially allows for minority rule — and one political party has become adept at exploiting that.
First, some numbers: Americans support keeping the Roe v. Wade precedent by a margin of more than two to one: in a January CNN poll, 69 per cent opposed the Supreme Court overturning the decision, while 30 per cent supported it doing so. A 2020 AP VoteCast poll yielded almost identical results.
More nuanced polling of abortion opinions shows solid majorities support access to abortion: A Pew Research study released Friday showed 61 per cent said abortion should be legal in all or most cases, while 37 per cent wanted it to be illegal in all or most cases. Only eight per cent said it should be illegal in all cases with no exceptions. An earlier Pew analysis of long-term polling on the question showed very similar numbers in 1995 and 2019.
This represents remarkable (and consistent) clarity from the American electorate. It’s hard to get 61 per cent of Americans to agree on anything—and certainly no one wins that kind of margin in elections these days. No president elected in the time range of that Pew polling analysis since 1995 has won more than 53 per cent of the vote.
More strikingly, only once in that time has a “pro-life” president won the most votes in an election.
While the U.S. Supreme Court is not supposed to respond to the passing whims of popular opinion, the method of appointing justices does reflect the will of the people over a longer term, or should: judges are appointed by elected presidents on the “advice and consent” of an elected Senate.
The Republican Party has lost the popular vote in seven of the eight presidential elections held over the past 30 years. But because the electoral college system which actually decides the presidency tilts the scales in ways that currently favour Republicans (for complicated reasons I’ve written about before), it has managed to win the presidency in three of those elections.
Over that time, seven of the court’s current justices have been appointed. Four of them were appointed by Republicans. Trump alone, in a single term, appointed one-third of the current court, with the help of a Republican Senate’s refusal to allow Barack Obama to appoint anyone during his final year in office, and its determination to push through a Trump nominee in his term’s final months.
What about Congress? Surely it could pass a law supported by a supermajority of voters that also appears to be supported by a majority of elected members?
Not likely.
Legislation to codify the rights established in Roe v. Wade has already been passed by the Democratic majority in the House of Representatives. This week, Senate Majority Leader Chuck Schumer vowed to bring such a measure to a vote in the Senate. A majority of senators appear in favour: there are questions about whether Democratic Sen. Joe Manchin would vote with his colleagues in the evenly divided Senate, but two Republican Senators, Susan Collins and Lisa Murkowski, support codifying Roe v. Wade.
Still, everyone seems to agree the effort is doomed. See, the Senate’s filibuster rule requires 60 out of 100 senators to vote to actually bring the matter up for consideration. That ain’t gonna happen.
The Senate, by design, is already a “countermajoritarian” institution, giving equal weight to each state no matter its population. Over time, the demographic sorting of most small states into the Republican column has become a big advantage: Republicans currently hold half the seats in the chamber, even though they only represent 43 per cent of the population.
The filibuster rule, entrenched through the 1900s primarily to support Jim Crow laws and oppose civil rights legislation, has made that minority advantage a de facto veto. It’s possible, David Frum observed in his 2020 book “Trumpocalypse,” for senators representing only 11 per cent of the population to use the filibuster to kill legislation.
The filibuster could be eliminated or narrowed to a simple majority vote. In fact, in 2017, Mitch McConnell and his then-Republican majority eliminated the filibuster for Supreme Court nominees — a key reason Trump was able to get three nominees through. But at least two members of the current Democratic Senate caucus refuse to consider further carve-outs of the filibuster.
If you want to get into the weeds, democratic (and Democratic) analysts and activists point to more ways the Republicans have been working to entrench mechanisms for minority rule as their party’s support base has shrunk: voting restrictions, gerrymandering, undermining election results and setting the table to overturn them. But in the case of abortion rights, you don’t need to examine those finer points to see how a determined minority has used the system to get its way.
One party has become good (and shameless) about doing it. The other party has no apparent strategy. Schumer and President Joe Biden’s response to the attack on abortion rights is to urge people to vote in November’s congressional elections. But clearly, getting the most votes in elections hasn’t prevented this situation from arising.
“This is about a lot more than abortion,” Biden said at the White House on Wednesday, suggesting access to birth control, the legality of same-sex marriage, and even the right of LGBTQ kids to attend school could now be threatened.
Looming over all those questions is a larger one: can a minority of Americans impose their will on the whole country in a place that’s proud to call itself a beacon of democracy? Biden and his party don’t seem, so far, to have an answer.
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