Many Americans may find it increasingly difficult to convince their international peers that the U.S. is truly a representative democracy.
A president who lost the popular vote (twice) nominated three conservative Supreme Court justices. Another president who lost the popular vote in his first term nominated two.
But Justice Alito’s opinion makes no claim that conservative justices are trying to appease the American majority. Rather, his draft claims that overturning Roe will be more democratic, that doing so will empower states to decide abortion law for themselves.
But can state governments be trusted to play fair?
State Governments Are Disinterested in Representing Their Constituents
Of the 26 states set to outlaw or severely restrict abortion access now that Roe v. Wade is overturned, Pew reports that the states where a majority or plurality of residents want abortion to remain legal are as follows:
- Arizona: 49% pro-choice vs. 46% anti-choice
- Florida: 56% vs. 39%
- Iowa: 52% vs. 46%
- Michigan: 54% vs. 42%
- Montana: 56% vs. 38%
- Nebraska: 50% vs. 46%
- Ohio: 48% vs. 47%
- Oklahoma: 51% vs. 45%
- Wisconsin: 53% vs. 45%
One-third of the state governments set to severely restrict or ban abortion represent populations where more residents want abortion to remain legal than don’t.
These nine state governments (who represent a combined population of some 67.6 million Americans) are failing their constituents. By their own actions, they’re making the case for why crucial human rights like a woman’s right to choose an abortion must remain under Constitutional protection.
Beyond the unwillingness of state governments to accurately represent their constituents, there’s a history lesson to remind us why abortion rights are for all women of a free nation, not just some of them.
As one historian put it, “Issues of individual rights bearing such heavy moral weight (as abortion) cannot be contained within state boundaries. ‘Let’s leave it up to the states’ will quickly become: ‘We expect other states to comply with our laws and will demand federal action to guarantee it.’”
That historian is drawing a lesson from the Fugitive Slave Act of 1850, which aimed to mollify southern states in their growing frustration that northern states refused to cooperate with the South’s slave laws.
The Act provided the legal framework for slave-holding states to demand that free states in the North return runaway slaves.
Back then, the existence of slavery anywhere meant the protection of it everywhere.
How long before similar conflicts arise around abortion access? Missouri legislators have already proposed a law that would allow private citizens to sue anyone who helps a Missouri resident have an abortion, even if that aid was provided outside Missouri’s borders.
From the person who drives a Missouri woman to an out-of-state abortion clinic to the doctor at that clinic, no one would be safe from Missouri legislators’ wild notion that their laws apply not just in Missouri, but in every state Missouri residents travel to.
Beyond the moral hypocrisy of Missouri state legislators (who proclaim to respect states’ rights) trying to enforce their laws on residents of other states, their proposal bears painful resemblance to the Fugitive Slave Act of 1850.
And while many Americans might not recall the Slave Act and the political, ideological, and often bloody fallout it created, every American certainly knows what happened 11 years later when the South felt it could no longer use political action alone to force its slave society upon the rest of the nation.
Alito’s Opinion Drives Us Further From a Resolution
Federalism, our chosen form of government in which some powers are held federally and some by the states, is a robust system that allows states to function as partially independent units.
This system works (more or less), but it only works when the republic guarantees basic rights to all citizens.
To allow broadly unaccountable institutions on the state and judicial level to impose severe limitations on what human rights are respected in which states is not only highly undemocratic, it flirts with a return to the same kind of state-to-state infighting and ideological bloodletting that brought the nation to its knees in 1861.
This is not a road we wish to travel again.
Republished with permission from the author. First published in the Tennessean.
Ren Brabenec is a writer, activist, and Planned Parenthood volunteer residing in Nashville, Tennessee.