The Democracy Question

Many commentators have suggested that it doesn’t make sense to say that the Supreme Court overturning Roe is a symptom of too little democracy. After all, the court’s original decision invalidated antiabortion laws passed by state legislatures, and as Justice Samuel Alito says in the leaked draft, this new decision simply returns the question “to the people’s representatives.”

While this argument is superficially plausible, it collapses when we take into account the larger context of the Supreme Court’s decision. The great majority of Americans want abortion to be legal at least under most circumstances. The primary obstacle to federal legislation to guarantee that outcome is a second deeply antidemocratic aspect of America’s current arrangements: the filibuster.

In places like my home state of Michigan, which has voted for pro-choice candidates in seven of the eight last presidential elections (Bill Clinton twice, Al Gore, John Kerry, Barack Obama twice, and Joe Biden) and which currently has a pro-choice governor (Gretchen Whitmer), the automatic effect of Roe’s reversal will be the reinstatement of a draconian antiabortion law passed in 1931. Unless the law is struck down by the state supreme court, abortion will be illegal even in cases of rape and incest.

I completely agree that the Supreme Court has far too much power in the American system. “Strong-form judicial review,” under which high courts can simply overturn laws, doesn’t exist in most parliamentary democracies. Many have some form of “weak-form judicial review,” under which high courts can issue recommendations on the constitutionality of laws. In some cases, parliaments then have to hold a second vote to overturn the court’s decision.

This hasn’t stopped basic rights from being protected in such democracies. In Ireland, for example, abortion was legalized by a popular referendum in 2018. In what had long been a deeply culturally conservative nation, two-thirds of the public voted to overturn the nation’s abortion ban.

Unfortunately, though, in the American system we can’t just hold a national referendum to guarantee such rights. And in this context, a panel of unelected judges with lifetime tenure overturning a wildly popular guarantee of basic human rights is a giant net loss for democracy.

The Democrats Drop the Ball

The right to control what goes on inside your own body is essential to human dignity. That’s why we don’t legally mandate organ donations. Of course, as we democratic socialists are always pointing out, if something’s a right, it can’t also be a commodity.

We want to enact real reproductive freedom by not only keeping abortion legal but eliminating all financial pressures that constrain women’s decisions in one direction or another. This could be done with a combination of making abortion free on demand as part of Medicare for All, providing universal day care, and rebuilding the labor movement so parents can make enough money to support families if they choose to have them.

No one expects mainstream Democrats to support that vision. Similarly, it’s unsurprising to see Biden make showy gestures of support for organized labor at the same time as he breaks his campaign promise to deny government contracts to union busters. That’s just the kind of thing Democrats do.

But their failure to act meaningfully to stop abortion from being outright criminalized in vast swaths of the United States takes their hypocrisy to another level. This is the stuff they’re supposed to care about.

Democrats have plenty of excuses for not making a serious effort to codify Roe into law. Their Senate majority is paper-thin with fifty Democrats, fifty Republicans, and Vice President Kamala Harris as the tiebreaker. And only forty-eight of the fifty Democrats are even nominally pro-choice. Joe Machin is flatly antiabortion, and Bob Casey seems to hold a slightly more ambiguous version of the same position. Arizona’s Kyrsten Sinema is pro-choice but too pro-filibuster for that to matter.

But here are a few things to keep in mind before giving them a pass for their failure to protect basic rights:

First, the Democratic majority in the Senate fluctuated between fifty-eight and sixty during the first two years of Barack Obama’s presidency. At no point in this period did Democrats even try to codify Roe into law.

Were they unaware that the Supreme Court might eventually issue the sort of ruling that just leaked? Hardly. They’ve yelled themselves hoarse about precisely that danger during every presidential election cycle of my lifetime. It’s a great way to get the Democratic base to come out and vote.

Second, the current effort barely even qualifies as “half-hearted.” Two pro-choice Republicans, Lisa Murkowski and Susan Collins, won’t support the current bill but would support a weaker version that adds in some exceptions (mostly codifying abortion restrictions already in place). Why doesn’t the Democratic leadership bring that version to the floor?

They can claim the reason is that they’re too damn principled to brook any compromise whatsoever on an issue this important, but that doesn’t pass the laugh test. This is the Democrats we’re talking about. They compromise three times before breakfast. The simple truth is that they don’t want to muddy the waters with a weaker bipartisan bill because they aren’t even thinking in terms of strategy for pressuring pro-filibuster Democrats and getting something passed. The point of the exercise is just to get everyone on record so they can run on the issue in the midterms.

Perhaps nothing they could do to apply pressure would work anyway. Joe Manchin swatted away his last primary challenger without breaking a sweat, and Kyrsten Sinema may already be looking ahead to her probable post-Senate career as a lobbyist. For all we know there could be a dozen more Democrats in the Senate as committed to keeping the hideously antidemocratic filibuster, and they’re all happy to keep their heads down and let Manchin and Sinema take the heat.

But the reason we don’t know whether any of that’s true is that Democrats haven’t even pretended to play hardball with these people. Is Joe Biden crisscrossing the country campaigning for primary challengers to unseat anti-choice or pro-filibuster Democrats? Have any publicly visible levers of political pressure been used against these holdouts?

Of course not.

In fact, two days after the leak of the draft opinion, House majority whip Jim Clyburn “hosted a get-out-the-vote rally for the party’s last remaining House member to oppose abortion rights, Rep. Henry Cuellar, D-Texas.” Nancy Pelosi has also endorsed Cuellar and declined to rescind that endorsement even after she and Senate majority leader Chuck Schumer put out a joint statement calling the draft opinion overturning Roe an “abomination.”

The general election in Texas hasn’t started yet. Pelosi and Clyburn are supporting Cuellar not against some equally anti-choice Republican but against a Bernie Sanders–backed primary challenger, Jessica Cisneros, who is of course pro-choice.

If the Democratic leadership went to war against the reactionaries standing in the way of legislatively codifying the will of the public on abortion rights, it might end badly. Maybe they’d lose their majority. Maybe Joe Manchin, for example, would switch parties and be reelected as a Republican.

But if you call something an “abomination” and you mean it, you should be willing to take real political risks to stop it. We’re not talking about some bill to adjust the top marginal tax rate by a percentage point or two. We’re talking about states around the country legally forcing pregnant women to stay pregnant and putting people in prison for making the “wrong” personal medical decisions.

This is put-up-or-shut-up time. If you care about something exactly enough to fundraise about it and issue strongly worded statements about it and use it to get out the vote in the midterm elections, but you don’t care quite enough to take the kind of stand that would risk defeat, fair-minded observers can’t be blamed for wondering if you actually give a shit.