The reversal of Roe v Wade, although expected, has come as a profound psychological shock to both liberal and left elements of American society. Indeed, the shockwaves have been global, with self-styled “progressive” leaders outside the United States, including French President Emmanuel Macron and Canadian Prime Minister Justin Trudeau, weighing in on the issue.
It should be noted that the reversal of precedent, although destabilizing to the American legal edifice, is not bad per se. It would be hard, for example, to find anyone today who would argue the reversal of Plessy v Ferguson, upon which the system of segregation was erected, was a “bad” decision. Thus, opining over precedent misses the point. The reversal of Roe is “bad” because, in addition to having bad outcomes for women’s healthcare, it is an assault on women’s rights. More than this, it should be emphasized that the weight of this decision will fall disproportionately on poor and working-class women, many of whom already suffer from inadequate healthcare coverage.
The war on abortion rights is nothing new in the United States and access to abortion was already highly regionally dependent. Many conservative states had few abortion providers, restrictive legal regimes, as well as “trigger laws” ready to ban abortion as soon as it was constitutionally possible. However, the balance of power has shifted. With constitutional protections eliminated, anti-abortion radicals seem poised to go on the offensive with talk of a national abortion ban.
Interestingly, just as Mike Pence is calling for a federal prohibition on abortion, his former boss, President Donald Trump, has been somewhat reticent about this legal victory for the so-called “pro-life” movement. With the popularity of the Democratic Party in the proverbial toilet, he has warned that overturning Roe could provide them with a much-needed boost ahead of the 2022 mid-term elections. It certainly does seem the case that, following the decision of the Supreme Court, Democrats were ready with those fundraising e-mails.
The Failure of the Democratic Party
But what will be the outcome? No doubt, some Democratic Party consultant is going to be getting a handsome payout thanks to the Supreme Court’s 6-3 decision. And, no doubt, the liberal pundit class will urge Americans to “vote harder” for Democrats, while simultaneously blaming everyone from Susan Sarandon to Bernie Sanders for “enabling” the Republicans to consolidate control over the courts. One should admit that there are certainly many Democrats, including in elected office, who are sincere in their support for a woman’s right to control her own reproductive cycle. Yet, despite posturing as the defender of a woman’s right to choose, the Democratic Party’s actual overall record on the issue is far from stellar.
On a most basic level, the Democrats failed to codify abortion rights at a national level through legislative action – with President Obama stating in 2009 that it was not “a top priority”. More than this, despite the apocalyptic rhetoric designed to extract money from the faithful, the party has also been actively complicit in the rolling back of abortion rights. In Louisiana, the party continues to support a Democratic governor who has facilitated the restriction of abortion rights. In Texas, the Democratic Party establishment has rallied behind the “pro-life” Henry Cuellar against his progressive challenger. Indeed, Hillary Clinton, when running for the presidency, selected Senator Tim Kaine, who it should be remembered, voted, in 2017, to confirm Amy Coney Barrett to the 7th Circuit and only rejected her for the Supreme Court in 2020 on procedural grounds. The contradiction between rhetoric and practice is glaring.
A Popular Struggle for Abortion Rights
The reality is that the reliance on Roe was always a bad strategy as it placed abortion protections in the hands of the highly undemocratic Supreme Court, an institution that has increasingly fallen under the control of social conservatives. But what is the alternative? It is perhaps to eschew top-down strategies to defend abortion run through the Democratic Party, strategies that are dependent on a protracted struggle for the courts.
Most immediately, it would be more fruitful for individuals who care about the issue to donate to abortion funds and grassroots mutual aid efforts rather than to politicians. More broadly, however, we might look to Ireland as a model for how abortion rights might be secured more firmly. While in Ireland abortion was legalized only in 2018, it was done so through popular mobilization culminating in a referendum that delivered a decisive majority (66.4%) in favor of legalization. A similar strategy might be pursued in America. While legalizing abortion at the national level through either legislative action or the courts may be a dead-end, within many states – including those that are in the process of outlawing abortion – there are mechanisms that allow for referendums that can compel legal changes. This presents an opportunity for a popular movement to take matters into its own hands and impose a democratic mandate for a woman’s right to choose.
And the historical precedent is good. Even in states in which voters consistently return conservative legislatures, “progressive” ballot initiatives can win. For instance, in GOP-dominated Missouri, voters rejected “right to work”, and voted for Medicare expansion, as well as the legalization of medical marijuana. Therefore, a struggle for abortion rights that bypasses the Democratic Party seems not only possible but preferable. While victory is by no means certain, it is perhaps a better bet to rely on the people rather than a party that has so clearly failed on this fundamental issue.