WASHINGTON – If the matter were left to Americans to decide democratically, abortion would remain legal in the United States
But the Supreme Court appears set to overturn the 1973 abortion rights precedent Roe v. Wade, and an apparent majority in Congress that supports enshrining abortion protections in law expects his vote on the issue to fail next week.
Eh? How is this possible in a place that boasts of being the oldest democracy in the world?
A big part of that is that the American system, by design and manipulation, essentially allows for minority government — and a political party has become adept at exploiting that.
First, some numbers: Americans support maintaining the Roe v. Wade by a margin of more than two to one: In a January CNN poll, 69% opposed the Supreme Court overturning the ruling, while 30% supported it. A 2020 AP VoteCast poll returned nearly identical results.
More nuanced opinion polls on abortion show strong majorities support access to abortion: A Pew Research study released on Friday showed 61% said abortion should be legal in all or most cases, while 37% wanted it to be illegal in all or most cases. Only eight percent said it should be illegal in all cases, no exceptions. An earlier Pew analysis of a long-running poll on the issue showed very similar numbers in 1995 and 2019.
This represents remarkable (and consistent) clarity from the American electorate. It’s hard to get 61% of Americans to agree on anything — and certainly no one wins that kind of margin in elections these days. No president elected in the period of this Pew poll analysis since 1995 has won more than 53% of the vote.
More strikingly, only once during this period has a “pro-life” president won the most votes in an election.
While the United States Supreme Court is not meant to respond to the passing whims of popular opinion, the method of appointing judges reflects the longer-term will of the people, or should: judges are appointed by presidents elected by the “advice and consent” of an elected Senate.
The Republican Party has lost the popular vote in seven of eight presidential elections held over the past 30 years. But because the electoral college system that actually decides the presidency tips the scales in a way that currently favors Republicans (for complicated reasons I’ve already discussed), he managed to win the presidency in three of these elections.
During this period, seven of the Court’s current judges were appointed. Four of them were nominated by Republicans. Trump alone, in a single term, appointed a third of the current court, with the help of a Republican Senate’s refusal to allow Barack Obama to appoint anyone in his final year in office, and to his determination to push through a Trump nominee in his final months of the term.
And Congress? Surely he could pass a law supported by a super-majority of voters that also appears to be supported by a majority of elected members?
Legislation to codify the rights established in Roe v. Wade has already been passed by the Democratic majority in the House of Representatives. This week, Senate Majority Leader Chuck Schumer promised to put such a measure to a vote in the Senate. A majority of senators favor it: it is questioned whether Democratic Senator Joe Manchin would vote with his colleagues in the equally divided Senate, but two Republican senators, Susan Collins and Lisa Murkowski, support the codification of Roe v. Wade.
Yet everyone seems to agree that the effort is doomed. You see, the Senate’s filibuster rule requires that 60 out of 100 senators vote for the matter to be considered. It will not arrive.
The Senate, by design, is already a “counter-majority” institution, giving equal weight to each state, regardless of its population. Over time, the demographic ranking of most small states in the Republican column has become a big plus: Republicans currently hold half the seats in the chamber, even though they make up only 43% of the population.
The filibuster rule, rooted in the 1900s primarily to support Jim Crow laws and oppose civil rights legislation, made this minority advantage a de facto veto. It’s possible, David Frum observed in his 2020 book “Trumpocalypse,” that senators representing just 11% of the population are using the filibuster to kill legislation.
Filibuster could be eliminated or reduced to a simple majority vote. In fact, in 2017, Mitch McConnell and his then-Republican majority eliminated the filibuster of Supreme Court nominees — a key reason Trump was able to get three nominees through. But at least two members of the current Senate Democratic caucus refuse to consider further exclusions from the filibuster.
If you want to get into the weeds, Democratic (and Democrat) analysts and activists point to other ways Republicans have worked to entrench minority governing mechanisms as their party’s base of support has sagged. narrowed: voting restrictions, gerrymandering, undermining election results and setting the table to overturn them. But in the case of abortion rights, you don’t need to examine those intricacies to see how a determined minority has used the system to achieve its ends.
Part of it has become good (and shameless) at doing it. The other side has no apparent strategy. Schumer and President Joe Biden’s response to the attack on abortion rights is to urge people to vote in November’s congressional elections. But clearly, getting the most votes in the election didn’t stop this from happening.
“It’s about much more than abortion,” Biden said at the White House on Wednesday, suggesting that access to birth control, the legality of same-sex marriage and even the right of LGBTQ children to go to the school could now be threatened.
Above all these questions looms a larger question: Can a minority of Americans impose their will on the entire country in a place that prides itself on calling itself a beacon of democracy? Biden and his party do not seem, for the moment, to have an answer.
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