Fundamental rights cannot be violated by popular vote
During a recent Supreme Court hearing, Justice Brett Kavanaugh advanced this case for reversing precedent and canceling a woman’s right to make critical health decisions for herself: “The Constitution is neither pro-life nor prochoice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.”
On the surface, that sounds fair. But Kavanaugh’s argument is deeply disingenuous, and he profoundly misreads the nature of America’s political tradition. In our system, when a right is deemed fundamental, it cannot be abrogated by a popular vote.
The founders created a network of checks and balances — especially the federal courts — to protect the rights of individuals, even when they are unpopular. As Harvard law professor Jeannie Suk Gersen wrote in The New Yorker: “The point of a fundamental constitutional right is that it shouldn’t be at the people’s mercy, particularly when the composition of the court itself has been shifted through political means for this purpose.”
In the latest Washington Post/ ABC poll, 60% support upholding Roe v. Wade, and that includes 42% of Republicans. Only 27% back what Kavanaugh and other conservative justices seem intent on doing — overturning Roe. But the state level presents a very different picture. If Roe is reversed, 26 states are “certain or likely to ban abortion,” according to the pro-choice Guttmacher Institute. The “fundamental constitutional right” Gersen describes would be nullified by a tyrannical segment of “the people.”
One parallel is the historic fight for racial equality. In 1954, the high court issued a unanimous ruling that banned segregated schools. Under the same banner of “states’ rights” brandished by Kavanaugh, a campaign of resistance to integration was conducted for decades.
But in 1954, the court stood for the principle of expanding justice and liberty, even when those principles were deeply unpopular in some quarters. Today, the court seems about to abrogate a basic right that has been settled law for 48 years.
Even the most fundamental rights are not absolute. The court has allowed states to limit abortions after the “viability” of a fetus to live outside the womb — about 22 to 24 weeks. In the Casey case of 1992, the justices permitted restrictions that don’t impose an “undue burden” on pregnant women: an eminently sane compromise.
We have to respect the personal convictions of women who, for religious or moral reasons, consider abortion immoral and would never have one themselves. It’s also true that the most emphatic supporters of abortion rights can downplay the risks that the procedure entails. But the principle behind Roe remains valid: Women should have the right to make those decisions for themselves.
A sizable portion of the Republican Party once believed that, too. Consistent libertarians have always insisted that the government has no business dictating how a woman controls her own body. In fact, Sen. Barry Goldwater was such a staunch supporter of abortion rights that Planned Parenthood has named an award after him.
But in recent decades, the GOP has been captured by people who acquire and use government power to impose their religious and moral values on everyone else. Their primary goal has been to stack the federal courts with like-minded judges.
The strategy worked. The court seems ready to reward their efforts and reverse, or restrict, Roe.
But America has always stood for the steady, if fitful, expansion of liberty, rather than its contraction. And history will render a harsh judgment on any judge who betrays that principle.