Daily Local News (West Chester, PA)

Deepening the crisis of democracy

- E.J. Dionne

If the Supreme Court adopts the substance of Justice Samuel Alito Jr.’s draft ruling ending the constituti­onal right to abortion, the conservati­ve majority’s radicalism will deepen the crisis of American democracy and further divide an already torn country.

There is an irony to this since, in principle, the Alito opinion is all about democracy. “It is time,” he writes, “to heed the Constituti­on and return the issue of abortion to the people’s elected representa­tives.”

The backlash against Alito’s approach is certainly a case of democracy in action. One of the unintended consequenc­es would be the mobilizati­on of pro-choice voters.

As long as abortion rights were seen as safely under the protection of Roe v. Wade and Planned Parenthood v. Casey, the issue of abortion mostly energized opponents, who voted again and again for Republican­s promising to support antiRoe Supreme Court nominees.

But even as they harvested pro-life votes, conservati­ves engaged in a deceptive two-step. Except for Donald Trump, who said outright that “I will be appointing pro-life judges,” Republican politician­s typically veiled their intentions behind abstract promises to back “strict constructi­onists” who wouldn’t “legislate from the bench.”

The justices themselves were equally cagey during their confirmati­on hearings. They never told us they thought Roe was wrongly decided. On the contrary, they spoke of their great respect for precedent, often at length. Whether you call this lying or not, it was certainly intentiona­l misdirecti­on and evasion. The last thing Trump’s appointees wanted was an extended debate on what overturnin­g Roe would mean.

Even now, most Republican politician­s don’t want to talk about Roe. That’s because they know how unpopular eviscerati­ng abortion rights would be. So they focus instead on how horrible it is that a draft opinion leaked out of the court.

Conservati­ves hate it when anyone points out this truth: Three of the five reportedly anti-Roe justices were named by a president who lost the popular vote by 2.9 million and were confirmed by senators representi­ng a minority of the nation’s population. Or that one of the vacancies was created by then-Senate Majority Leader Mitch McConnell’s blockade against Merrick Garland’s nomination in the final year of Barack Obama’s presidency. And then came McConnell’s reversal on the issue of letting an election happen before a justice was confirmed. He rushed Amy Coney Barrett’s nomination through in 2020 just days before the voters chose Joe Biden.

Knocking down Roe would engage the public in a way no other decision has; a Washington Post-ABC News poll conducted last month found that 54% of Americans support upholding Roe; only 28% said it should be overturned.

Thus the problem with the question posed by Alito’s defenders: Can it be anti-democratic to throw the abortion issue back to state legislatur­es? It’s not just that most people plainly disagree with ending Roe. It’s also the extreme selectivit­y of the judicial right where democracy is concerned.

The court’s conservati­ve majority has sabotaged all manner of democratic­ally enacted laws: environmen­tal and labor regulation­s, limits on the role of money in politics. The court’s decisions on voting rights and gerrymande­ring are anti-democratic on their face since they enable minority rule in the states that would be legislatin­g on abortion. And the justices’ refusal to be candid about their designs on Roe matters. They prioritize­d their own confirmati­ons over the imperative of a necessary national dialogue on the flaws and virtues of a controvers­ial ruling they apparently intended to scrap.

On a personal level, I understand the surveys showing that many Americans have complicate­d views of abortion. Mine are complicate­d, too. Here’s what’s not complicate­d: The best path toward reducing the incidence of abortion is to offer far more support to women, both during pregnancy and as they raise their children.

By walking away from child credits, expanded child care and paid parental leave, our nation has signaled its indifferen­ce to their struggles.

But the abrupt fall of Roe, and the widespread criminaliz­ation of abortion, would be disastrous. It would endanger the lives of many women and place a particular burden on the least privileged among us.

Conservati­ves (as Chief Justice John G. Roberts Jr. may be telling his colleagues) should understand that a change as radical as the one Alito contemplat­es almost always blows up in its authors’ faces.

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