A Note on Overturning Roe– State Governments Do Not Represent “the People”

As everyone knows, the Supreme Court overturned Roe v Wade on Friday, June 24, rejecting the key principle in Roe that American women had a constitutional right to abort pregnancies and authorizing conservative states to outlaw abortion altogether. Here’s the key quote:

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

Since Friday, there’s been a wide range of reactions from people who care about human rights in the United States, including calls to codify Roe into federal law, amp up distribution of abortion pills, maintain abortion rights on military bases and other federal property, use tribal lands for abortions, have employers pay for travel to get abortions, and expand the Court which would also require eliminating the filibuster in the Senate.

Different proposals have different merits and weaknesses. Using tribal lands for abortions was a complete non-starter but I think there will be a number of non-starters as people on the left begin to focus on restoring human rights in America.

My preference is to address the problem directly. I support eliminating the Senate filibuster and expanding the Court and I’ve argued on twitter that Democrats should seek to expand the Court from 9 justices to 19 in order to re-establish the rights recognized in Roe and overturn the enormous amount of awful Constitutional law that’s been enacted by successive right-leaning Supreme Courts since the Casey case in 1992.

What I wish to address briefly here is the Supreme Court’s idea that the states are proper vehicles for making law in relation to issues like abortion rights, reproductive rights more generally, gun violence, or the environment. Outside the 10th Amendment, the idea is that state governments in states like Texas, Wisconsin, Michigan, and North Carolina are “closer to the people” than the federal government and are better vehicles than the federal government for representing “the will of the people.” In the “syllabus” to the Dobbs decision, Samuel Alito writes in relation to Roe v Wade (1973) and Case v Planned Parenthood (1992) that “The Court overrules those decisions nd returns that authority to the people and their elected representatives” by which he means “elected representatives” in state government.

However, elections in many states, especially Republican-dominated states, are so distorted by gerrymandering and vote suppression that state governments do not and can not reflect the “will of the people.” In relation to gerrymandering, a classic example is Wisconsin. Here are the party vote totals and distribution of seats in the Wisconsin Assembly for 2018.

In the 2018 elections, Democrats got 54% of the vote for the Wisconsin Assembly but only received 36% of the seats. In other words, one Democratic vote had a .666% impact in electing Wisconsin representatives while one Republican vote had a 1.39% impact. As is now the case with women, being a Democrat in Wisconsin makes a person less than a full citizen while being a Republican gives a person a kind of miniature “super-citizen” status. In 2018, the Wisconsin legislature represented the “will” of a privileged minority of Republican voters rather than the people as a whole. The Wisconsin Assembly should not be deciding the fundamental rights of the people of Wisconsin.

However decisions concerning abortion rights are worked out, state legislatures in gerrymandered states like Wisconsin do not represent the “will of the people.”