‘Democracy’ doesn’t work as an argument against overturning Roe v. Wade

Published 11:22 am Friday, May 6, 2022

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In the wake of a leaked draft Supreme Court opinion which, if it represents a final vote, would overturn Roe v. Wade, pro-choice advocates are marshaling their best — and worst — arguments against removing that ruling’s protections for abortion.
As always, I’ll refrain from sharing my own opinions on abortion as such. I’m not interested in convincing anyone of anything there, if for no other reason than that I’m not firmly convinced myself.
I won’t refrain from sharing my opinions on poor arguments, though. Both in general and on abortion specifically, they’re quite possibly my top pet peeve. And the worst argument I’m hearing right now is … the envelope, please …
Overturning Roe would be “undemocratic.”
“Overturning Roe v. Wade Shows the Right Has Nothing but Contempt for Democracy,” Ben Beckett writes at Jacobin. “If the decision stands, it will be a high-water mark for the Right’s project of undemocratic rule …. As the draft decision shows, the Supreme Court is arguably the most powerful weapon the Right has for ruling without and against the people.”
Really? The problem isn’t a matter of fundamental individual rights versus state power, but rather of “democracy?”
Let’s take a look at the three underlying cases:
In Roe v. Wade (1973) the Supreme Court overturned Articles 1191-1194 and 1196 of Texas’s Penal Code. Those articles and that code were passed by a democratically elected state legislature. The Court overturned “democracy” in favor of what it held was a constitutionally protected individual right.
In Planned Parenthood v. Casey (1992), the Court further expanded its interpretation of those constitutional protections versus Pennsylvania’s Abortion Control Act of 1982, once again ruling against a democratically elected state legislature and in favor of a right to abortion.
In the current case, Dobbs v. Jackson Women’s Health Association, the Court will rule either for or against Mississippi’s Gestational Age Act — which, you guessed it, was duly passed by a democratically elected state legislature.
If the draft opinion becomes an actual ruling, democratically elected state legislatures will once again make decisions on abortion law.
That’s the exact opposite of “undemocratic.” It’s full-blown democracy, tip-toeing through the abortion tulips with bells on and playing a ukulele.
Those who claim a constitutional right to abortion might want to reconsider their fetishistic (and in this case, simply incorrect) appeals to “democracy.” There’s something to be said for protection of individual rights against the whims of majorities — and not only on this issue.
(Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.)

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