The Majoritarian Difficulty

Another staple of the pro-choice, anti-Roe argument is that, because abortion rights are generally popular, the protection of the Supreme Court isn’t really necessary. Wittes asserted that “the Supreme Court has prevented abortion-rights supporters from winning a debate in which public opinion favors them.” Rosen recently and tellingly argued that the transformations if Roe is overruled or gutted “may be less dramatic, in practice, than liberals fear” because “the main effect would be restricting the access of poor women who have little access today.”

It is very odd indeed to argue that overruling Roe is no big deal because its greatest effects would be on the most vulnerable populations. (It’s true that, because of Casey, the access of many poor women to abortion has been greatly reduced. But from a pro-abortion rights perspective the obvious answer is to move toward the more robust protections of the original Roe rather than making abortion even less accessible.)

But the inequitable impact of overruling Roe is important politically as well. The women who pay the biggest price for abortion criminalization and most regulations are the least politically powerful.

Even when abortion is banned by a state, affluent women generally have access to safe abortions, either through the “gray market” of doctors who quietly perform them or by their ability to travel to other jurisdictions. As a result, many affluent pro-abortion rights Republican voters can keep voting Republican knowing that more restrictive abortion laws will not affect them or people similarly situated. After all, before Roe the vast majority of states kept abortion bans on the books even as national majorities become supportive of abortion rights.

Elections are not referendums; supporting a particular unpopular position doesn’t necessarily spell electoral doom for a party. And that’s doubly true when the population affected most by a law has little political power. This is exactly a case where judicial protection of a threatened right is both appropriate and in many cases necessary.

It’a not, exactly, that this public opinion won’t influence the Court. Rather, it’s that it will encourage the Court to pursue the bullshit-minimalist path to overruling it. Because of the substantial regulatory leeway Casey extended Congress and the states Roe can be almost entirely gutted without needing to hear a case that directly challenges Roe. And, of course, Alito is the master of writing opinions that make it essentially impossible to sue to enforce rights he doesn’t believe should be enforced, and he already wrote the template in Whole Women’s Health. Supporters of reproductive rights will need to make to do the best they can to make it clear to the public what’s going on.