The link between the right to vote and judgment on abortion

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The opinion of the Supreme Court in Dobbs v. Jackson Women’s Health Organization gives states maximum freedom to restrict abortion. The ruling is so sweeping that, under its logic, states could ban abortion even in cases of rape or incest; they may even be able — as the dissent notes — to ban abortions in circumstances where a doctor believes the procedure is necessary to preserve the life or health of the pregnant person.

Judge Samuel A. Alito Jr.’s opinion attempts to downplay those concerns by insisting that abortion rights advocates can now register their support politically. The decision, he writes, “allows women on both sides of the abortion issue to seek to influence the legislative process by influencing public opinion, lobbying legislators, voting and standing for elections”. He casually concludes that “women are not without electoral or political power”.

Alito’s assurances, however, ring hollow — in part because this conservative tribunal has made several decisions that have hampered the infrastructure of democracy. As a result, genuine democratic deliberation on the issue of abortion will be elusive. What the Court has done is hand over the issue of abortion to politicians increasingly alienated from the will of the voters, as well as increasingly extreme on issues of reproductive rights and women’s self-determination. .

One of the ways the court has done this involves partisan gerrymandering. Partisan gerrymandering allows politicians, in effect, to select their voters — and to ensure that a particular party and its politicians stay in power even when a majority of voters want them out. By designing constituencies to benefit their own, political parties ensure their continued primacy – and artificially constrain the will of the majority. Take Wisconsin, where in 2018 the Republican gubernatorial candidate (incumbent Scott Walker) lost the popular vote by about 1 percentage point. Nevertheless, state legislative districts had been drawn by Republicans in such a way that Walker’s party was able to win 63 of the 99 seats in the state assembly. Partisan gerrymandering not only results in more extreme laws that severely restrict abortion and contraception, but also makes it harder to vote against politicians who enact these measures.

Trump court limited women’s rights using 19th century standards

The Supreme Court has cultivated conditions that allow partisan gerrymandering to thrive. In 2018, for example, he said federal courts cannot strike down partisan gerrymanders because they present a “political question” best decided by politicians and state legislatures. The logic is painfully circular: the court has given the power to correct partisan gerrymandering to the very people who are most invested in maintaining gerrymandered districts. It’s like asking a burglar to investigate a burglary. After the court took this hands-off stance, some states drew even more aggressive maps than before. (State courts can currently remedy partisan gerrymandering, but the Supreme Court will decide in the next term whether they have the right to do so.)

This court also allowed politicians to insulate themselves from the will of the people in other ways – and, in particular, from the will of people of color. This is particularly problematic in the context of abortion, as women of color will suffer disproportionately in states where abortion is made illegal. Black women, for example, have almost three times the risk of maternal mortality than non-Hispanic white women; Native American and Alaska Native women are at double risk.

These minority groups will find it difficult to articulate their objections to abortion restrictions in electoral politics. Last quarter, for example, the court approved two voting rules in Arizona that disproportionately limit the votes of members of minority groups. In another far-reaching opinion from Alito, the court allowed Arizona to prohibit anyone but the voter from returning an absentee ballot and to reject ballots mistakenly cast in the wrong constituency. A lower court – the United States Court of Appeals for the 9th Circuit – found that both of these rules violated Section 2 of the Voting Rights Act (because Arizona changed the location of polling stations in minority communities, creating confusion, and because Indigenous voters were more likely to live farther from a polling location, making it more difficult to vote in person).

In 2013, the court freed several states with a history of voter discrimination from the requirement under the Voting Rights Act to obtain “prior approval” from judges or the U.S. Attorney General before to change their voting rules. The 2021 ruling further weakened the Voting Rights Act, ruling that the discriminatory effect of the laws was often not sufficient to establish a violation of what remained of the law, making it much more difficult to challenge. of all sorts of exclusionary voting measures by states.

Looking ahead, the court is also poised to make it easier for states to dilute the voting power of racial minorities. This year, he tentatively allowed an Alabama district map to go into effect after a three-judge district court panel found the map minimized the voting power of people of color. Alabama’s population is 27% black, but according to the new map, black voters have the power to elect their preferred candidates in just one of the state’s seven congressional districts. The Supreme Court will formally hear the Alabama case next quarter. He is likely to give his blessing to the program – which will invite other states to follow suit.

It is no coincidence that the Court is making our democracy less democratic at the very moment it returns the issue of abortion to the political process (in the name of democracy).

After all, the Supreme Court that struck down deer is itself the product of minority domination. Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett were all confirmed by senators who collectively represented fewer people than the senators who voted against them. Moreover, these three judges were appointed by a president who received fewer total votes than the opposing Democratic candidate.

Given that the court has consistently undermined democracy over the past decade, its recent call for democracy rings hollow — especially in the context of a ruling that allows states to treat women as lesser citizens. as full and equal citizens.

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