Abortion ruling puts spotlight on gerrymandered state legislatures

In overturning a half-century of nationwide legal protection for abortion, the U.S. Supreme Court ruled that Roe v. Wade had been wrongly decided and that it was time to “return the issue of abortion to the people’s elected representatives” in the states.

Whether those elected officials are truly representative of the people is a matter of debate, thanks to another high court decision that has enabled control of state legislatures to be skewed to the right or left.

In June 2019, three years before its momentous abortion ruling, the Supreme Court decided that it has no role in restraining partisan gerrymandering, in which Republicans or Democrats manipulate the boundaries of voting districts to give their candidates an edge.

The result is that many legislatures are more heavily partisan than the state’s population as a whole. Gerrymandering again flourished as politicians used the 2020 census data to redraw districts that could benefit their party both for this year’s elections and the next decade.

In some swing states with Republican-led legislatures, such as Michigan and Wisconsin, “arguably gerrymandering really is the primary reason that abortion is likely to be illegal,” said Chris Warshaw, a political scientist at George Washington University who analyzes redistricting data.

Meanwhile, “in states where Democrats have gerrymandered, it’s going to help probably make abortion laws more liberal than people would like,” he added.

A majority of Americans support abortion access in general, though many say there should be some restrictions, according to public opinion polls.

States have sometimes been viewed as laboratories for democracy — institutions most closely connected to the people where public policies are tested, take root and potentially spread.

Writing for the Supreme Court’s majority in its June 24 abortion decision, Justice Samuel Alito noted that 30 states had prohibited abortion when the 1973 Roe v. Wade ruling “short-circuited the democratic process,” usurped lawmakers and imposed abortion rights nationwide.

“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office,” Alito wrote.

Abortion already is an issue in Wisconsin’s gubernatorial and legislative elections. A recent Wisconsin poll showed a majority supported legal abortion in most or all cases. But a fight is brewing over an 1849 state law — which had been unenforceable until Roe v. Wade was overruled — that bans abortion except to save the life of the woman.

Democratic Gov. Tony Evers is backing a court challenge to overturn the law, enacted just a year after Wisconsin gained statehood. He also called a special legislative session in June to repeal it. But the Republican-led Assembly and Senate adjourned in a matter of seconds without taking action.

Wisconsin’s legislative chambers had one of the nation’s strongest Republican advantages during the past decade and are projected to continue to do so under new districts in place for the 2022 elections, according to an analysis by PlanScore, a nonprofit organization that uses election data to rate the partisan tilt of legislative districts.

“Democracy is distorted in Wisconsin because of these maps,” Assembly Minority Leader Greta Neubauer said.

In 2018, Democrats won every major statewide office, including governor and attorney general, races where gerrymandering isn’t in play. But they have not been able to overcome heavily gerrymandered state legislative districts since Republicans won control of the statehouse during the midterm elections in 2010.

“If we had a truly democratic system in Wisconsin, we would be in a different situation,” she said. “We would be overturning this criminal abortion ban right now.”

Republican state Rep. Donna Rozar, a former cardiac nurse who backs abortion restrictions, said gerrymandering shouldn’t stop political parties from running good candidates to represent their districts. She expects a robust abortion debate during the campaign to carry into the 2023 legislative session.

“This is an issue that is so critical to come back to the states, because each state then can elect people that will represent their values.” Rozar said.

The 2010 midterms, two years after former President Barack Obama was elected, were a pivot point for control of statehouses across the country. Coming into that election, Democrats fully controlled 27 state legislatures and Republicans 14, with the rest split. But sweeping GOP victories put the party in charge of redistricting in many states. By 2015, after two elections under the new maps, Republicans fully controlled 30 legislatures and Democrats 11.