The Dobbs Decision Diminished Democracy

By: Pat Merloe

Democracy is based on sovereignty residing in the People. When they are empowered democracy is strengthened. On June 24, the U.S. Supreme Court’s?Dobbs?decision diminished American democracy by disempowering over half of the population. Restoring that power is entwined with defending democracy.

For almost 50 years since the?Roe v Wade?case it was settled law that women in the U.S. had the constitutional right to make decisions about whether to end a pregnancy. That is an essential element to the health and wellbeing of those who become pregnant. Being denied reliable access to a medically safe and legal abortion, an immediate consequence of the?Dobbs?decision for millions, increases the health risks for pregnant people – including mortality – because unsafe, illegal abortions will be sought. Conversely, being forced to carry a pregnancy to term creates multiple risks, including to health and potentially inhibiting the person from participating effectively in democratic, social and economic processes.?

The exposure to criminal prosecution and civil liability for abortion providers, as well as “aiders and abettors”, is triggered in a number of states by the decision. Those who undertake self-induced abortions, including with medications not legally prescribed and delivered in the state – even if they are a result of consultations where abortion is legal or obtained online – may face criminal penalties. The potential of social media and text communications being used as evidence in abortion prosecutions further subverts democracy and demonstrates how coerced reproduction sets the stage for the violation of a range of fundamental rights of those who are pregnant, their support communities and healthcare providers.?

Restricting reproductive rights places the U.S. on a counter course to the approximately 50 countries that expanded access to abortions in the last 25 years, of recent note Ireland, and puts it in the company of anti-democratic countries like Nicaragua, which completely banned abortions of any type.[i]?While many states still defend various levels of abortion access and there are differences among states that severely restrict abortion, a total ban remains a possibility not just by states but through national legislation.?Dobbs?is not the end of it.

As the concurring opinion of Justice Thomas foretells, the decision not only strips away privacy-right protection in deciding whether to have an abortion, it potentially eviscerates the constitutional protection of privacy concerning contraception, consensual sexual activity among adults, and other matters. The concurrence corresponds to the broader agenda of the radical right movement in America that is engaged in culture wars over abortion, LGBTQ+ rights, racial justice, immigration, and other matters.??The movement also is at the center of efforts to restrict voting rights under the false claim of protecting against electoral fraud.?

Just as?Roe v Wade?helped inspire pro-choice movements in other countries, there may be international implications from the?Dobbs?decision. Neither decision can be isolated from the social and political dynamics of their time or from international trends.?Roe?and other rights-affirming decisions as well as legislation of its time took place as movements for equal rights and citizen empowerment were gaining strength.?Dobbs, unfortunately, is set in the context of a rising radical right-wing, potentially violent movement which embraces the Big Lie that the last presidential election was stolen and that elections in the U.S. are rigged. Banning abortions is at the core of that movement which sees a victory in the?Dobbs?decision and is emboldened by it to pursue its rights-restricting agenda. Pushing voting restrictions, undermining impartial election administration and fostering distrust in elections are among the ways that movement is seeking to seize power and use the levers of government to advance its cause. That is one part of why defense and restoration of reproductive rights is linked to defense of democracy and voting.

Many things now must be done to support and defend those who need to safely end their pregnancy. Among them are court challenges, protective state legislative and constitutional changes, providing hotlines to those who need abortion assistance, raising financial support for travel to states where abortions are legal, and helping medical centers there to prepare for increased demand and provide for the safety of patients and healthcare workers.?

And, crucial action must be taken to mobilize and empower through the ballot box. Legislation and appointments of judges are determined by those who are elected. Protecting the integrity of election administration and defense of the voting franchise are integral to the defense of human rights, including reproductive rights, and to protecting democracy itself. Mobilizing the vote and ensuring it is honored is central to preventing a national abortion ban and to passing legal protections. It is the only way to prevent the deprivation of popular sovereignty, retain rights vested in the people and “secure the Blessings of Liberty to ourselves and our Posterity” as the U.S. Constitution imagines. As in every country around the world, our future depends on our taking action.?

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[i]?For information on rights to abortion and reproductive health internationally, including in light of international human rights protections, see e.g., websites of the Guttmacher Institute and Center for Reproductive Rights, which among other things refer to findings of UN treaty oversight bodies such as CEDAW documents and the UN Human Rights Committee’s General Comments, including GC 36, paragraph 8. See also the UNHCHR Information Series on Sexual and Reproductive Health and Rights: Abortion (updated 2020).