The Second Anniversary of Dobbs

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By David Pepper

This past Monday marked the two-year anniversary of the disastrous decision in Dobbs, it’s a good time to revisit the relationship between that decision and the ongoing attack on democracy in states (which the Court allows to take place).

Because only when you see the two issues together do you appreciate the roiling disaster that’s resulted across the country, and how it’s played out since, state by state. Hint: it’s all about the attack on democracy in gerrymandered states.

You also appreciate just how cynical the current Supreme Court majority is—clearly driven by politics in what they write and how they write it.Read on…

I warned about this two years ago when the Alito decision first leaked (and the final decision had the same features as the leaked opinion). Here’s what I wrote then:

Justice Samuel Alito’s draft majority opinion in Dobbs vs. Jackson Women’s Health has sparked outrage for plenty of reasons. The overruling of the foundational precedent of Roe v. Wade; the real-world impact it would have on millions of women; its inconsistency with the Justices’ sworn testimony during their nomination hearings; its grounding in misogynistic, centuries-old, repressive beliefs about women’s agency; and its far-reaching consequences in other areas of the law and American society.

But there’s one aspect of the opinion that cries out for more attention—one where Justice Alito’s words are especially disingenuous. And that disingenuousness matters, because it intentionally glosses over just how much the decision jeopardizes rights that, at least for now, are still protected by the Constitution.

Throughout the draft, Justice Alito lays on thick his assurance that after the Court’s decision, a healthy democratic process back in the states will resolve the issue of abortion access. He breathlessly repeats, on page after page, an idealistic notion that the “people” of the states, through their elected representatives, will decide the fate of women seeking abortion.

He writes that the policy of each state will arise “in accordance with the views of its citizens,” and confidently suggests that this will involve a process of “citizens trying to persuade one another and then voting.” Ultimate policy will vary among states because “the people of those states may evaluate those interests differently.”

He repeatedly casts the decision as one that will be in the hands of “voters”—because some “voters may believe” one thing, and other voters another. In the end, he declares, “we thus return the power to weigh those arguments [about the state’s ability to interfere with private healthcare decisions] to the people and their elected representatives.”

It’s a quaint narrative. But there’s one problem.

It’s not the world we live in today, and he knows it.

Most states, particularly those that are eliminating reproductive rights, no longer reflect healthy representative democracies. The connection between the officials in these statehouses and the “voters” of these states is tenuous at best—and altogether nonexistent in far too many states.

This is made no more clear than by the reality that state laws overturning Roe v. Wade do not reflect the broad majority of Americans, nor the majority in most states. Poll after poll shows the opposite: that majorities or supermajorities supportRoe v. Wade, and oppose the bedrock precedent being overturned. And that is true in states from Texas to Ohio, which are passing laws just like the Mississippi statute at issue in Dobbs—or worse—at breakneck speed.

So why do state legislators so comfortably legislate against the majority will within their states? Because counter to Alito’s waxing poetic about democracy, many of these statehouses have fallen away from meeting any basic definition of representative democracy. The biggest culprit is extreme partisan gerrymandering, where most election outcomes are guaranteed. Incumbents—almost all of whom reside in districts intentionally sealed off from any accountability on election day—win the general election no matter what they do. Their only obstacle in any election cycle is winning their partisan primary, which is best accomplished by being as extreme as possible and ignoring the majority will.

So it should come as no surprise that studies show the ideology of gerrymandered legislatures lurches far to the extreme of the electorate itself. And due to these rigged districts (and various voter suppression tactics), the people have no recourse, so the extremist, minority push only accelerates.

And how can I say Alito “knows” this? Why are his words disingenuous, and not simply misinformed?

Because the Court—Alito included—has openly recognized the breakdown in democracy happening across states. In cases addressing the deep disconnect between voters and the people who represent them in statehouses, they’ve all conceded that there’s a problem.

This took place most recently in the 2019 case Rucho v. Common Cause. In her dissent, Justice Elena Kagan confronted the dilemma in appropriately bleak terms: “These gerrymanders enable[] politicians to entrench themselves in office as against voters’ preferences. They promote[] partisanship above respect for the popular will. They encourage[] a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.”

But she was not alone. The conservatives echoed her concern. Roberts—in an opinion signed by Alito, Kavanaugh, Gorsuch, and Thomas—explained that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust….” They declared that “[s]uch gerrymandering is “incompatible with democratic principles.” Nevertheless, against Kagan’s dissent, they concluded that this “does not mean that the solution lies with the federal judiciary,” and instructed federal courts to not involve themselves in such cases.

It’s when you observe Rucho and Dobbs together that you see just how powerful a one-two punch the Dobbs opinion would deal to reproductive rights.

First, by casting asunder the constitutional right to an abortion secured by Roe v. Wade, the Court would throw that right to the mercy of the states. That’s bad enough.

But by refusing to protect representative democracy in those states, the Court is knowingly subjecting the fate of reproductive rights not to Alito’s glossy description of democratic governance, but to gerrymandered institutions that the Court itself acknowledges are “incompatible with democratic principles.” Alito’s reassurance in Dobbs that the Court’s decision will “return the power … to the people” is a poorly concealed attempt to soften the perceived damage. Instead, the fate of previously protected rights and the women whose lives depend upon them will be determined by the whims of an extremist minority that is locked into power via a broken democracy. In most states, gerrymandered to the hilt, the voters will hardly have a say at all.

Taken together, it’s a downward spiral with no end in sight, placing rights secured by the Constitution for generations into undemocratic chaos. And the conservative justices’ own words make clear that they know this to be the case.
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So that’s what I wrote then—calling out the Court for gaslighting America about what would happen in states after Dobbs, when they knew full well that it would be gerrymandered legislatures who would make decisions counter to the majority will.

And it’s played out exactly as you’d expect from what I described:

Despite the strong majorities of Americans supporting reproductive freedom, abortion is generally banned in red, gerrymandered states—because the gerrymandering keeps those states from being representative democracies in the first place. They can pass unpopular laws and still face no accountability, so they do—keeping the far right happy.

The exception to this is that when the people themselves have rallied to demand a straight up-or-down vote on abortion access and reproductive freedom (which they can do in 19 states), reproductive freedom has won. Direct democracy successfully overcome the non-representative, gerrymandered legislatures in states like Ohio, Kansas and elsewhere. I’m optimistic that the the same will happen this year in states like Florida and Missouri.

And all of this points to the multi-tiered pro-freedom, pro-democracy agenda we must pursue going forward:

1. Do all we can to protect core rights such as abortion access as federal rights, protecting them from the efforts of non-democratic states to eviscerate them (especially those states that are gerrymandered and currently do not allow for direct democracy)

2. Protect and lift democracy in states—by ending gerrymandering, undertaking other reforms that bring needed accountability, protecting direct democracy (where it is continuously under attack), protecting independent state courts, running everywhere, fighting back against voter suppression, etc.

For too long, we focused on the first goal and not on the second, thinking winning US Senate and House seats would protect us from the anti-choice forces—while allowing dozens of states and tens of millions of Americans to exist in a world without representative democracy.

The lesson of the cynical Dobbs ruling, and what’s happened since, is that forever more, we must pursue both!