How Dare They! Your Thoughts.

Dozens of readers dissent over my piece on the SCOTUS leak and discuss the issue of abortion more generally.

Pro-choice demonstrators chant in front of the un-scalable fence that stands around the Supreme Court on May 5, 2022. (Jim Watson / AFP via Getty Images)

A reader writes:

Your points about the SCOTUS leak would be better taken if political processes in the US were truly democratic. At the national level, our system of representative government gives disproportionate influence to rural voters, who tend to skew older, whiter, and more religious than urban voters. This is also true at the state level for many states. I think the US is a “center-right” nation, but our system skews our effective political center even further to the right. My own sense is that much of the “emotive hyperbole” in the response to Alito’s opinion is a genuine concern for the fate of women, particularly poor women, who have the misfortune of an unwanted pregnancy in a state where abortion will not be available.

I take the second point — but it can be made without the kind of hysteria we’ve seen. But the first point is essentially calling our entire political system illegitimate. And that is increasingly the argument from the Democrats. The system was somehow legitimate when it upheld federal abortion on demand; but now, not so much. The argument is: there is no real democracy in the states and so we have to keep this issue away from democratic deliberation. I hope the Dems have thought this one through.

From another reader who also believes our system is too flawed:

You say Democrats are being contemptuous toward democracy, and I take some of your points. But you’re mute about the Senate’s refusal to grant a hearing to Merrick Garland (and their hypocrisy when they rushed to replace RBG). As I recall, you were upset about these things when they happened. Have you already forgotten? Many of us will always have justified resentment over the stolen Supreme Court seat.

This is all related, I think, to the sense that this is yet another great victory for Trump. Not that he cares about abortion, or the Court. But the guy who didn’t win the popular vote (twice), and who was impeached (twice), was nevertheless able to put three justices on the Court.

I understand and share the revulsion at McConnell’s naked tribalism and abuse of his power. But the Court is legitimate, and its rulings need to be respected. That’s the question. If the Democrats believe that the court is now an illegitimate branch of government, they should say so.

Another adds, “You’re conveniently forgetting that five of the nine justices (Roberts, Alito, Gorsuch, Kavanaugh, Barrett) were nominated by presidents who lost the popular vote.” That is completely irrelevant. But even it it weren’t, both of Bush’s appointees were picked during his second term, after he won the popular vote against Kerry.

Another dissenter asks, “What about gerrymandering?”

Currently, several state legislatures have big GOP majorities that in no way reflect the number of votes each party received in the preceding election. My guess is that one or more of these legislatures will act quickly this summer, after Roe is overturned, to outlaw abortion. Will that be an instance of democracy working well?

Yes, it absolutely will. And voters can vote again in November. Again: is it the pro-choice position that no states be allowed to legislate on abortion because gerrymandering exists? What else are they barred from voting on?

Another reader insists that “voting access is being increasingly restricted in these same states, as the GOP seeks to preserve and cement its majority”:

This is not democracy in a sterile science lab. The broken politics of our era that deny us reform via the democratic process — on immigration, on energy, on climate change — will also deny us a comprehensive and humane policy on abortion.

Oh please. This next reader gets specific:

I live in Wisconsin. Still on the books here is an 1849 law that will ban abortion when Roe falls, making it a felony to perform or assist in any abortion — punishable by up to six years in prison. Meanwhile, our legislative districts are hopelessly gerrymandered. Democrats need overwhelming majorities just to break even. So that 1849 law is not going to be changed anytime soon, even though a majority of Wisconsinites are pro-choice.

Let’s see how that shakes out in November, shall we? But if gerrymandering makes all state legislation illegitimate then I don’t know how the republic continues at all. Another reader points to the 13 states with trigger laws that will ban abortion in the wake of Roe’s repeal. Another looks to a current situation:

In Texas right now, women with ectopic pregnancies aren’t being treated. According to The Lily (just acquired by the WaPo), one ectopic sufferer was refused life-saving treatment at the ER and told to drive to another state. Which she did: 12 hours to New Mexico. To save her own life. The delay could have been fatal. There will be plenty of these stories, and I hope you engage with them more thoughtfully than shrugging and leaving women’s health up to anonymous moralizing strangers.

Does my reader realize that among those “anonymous moralizing strangers” are a big chunk of women voters who are pro-life? More on Texas from this dissenter:

You quoted Aaron Blake, who wrote, “[A] Quinnipiac University survey from late last year, found that just 16 percent of Texans said abortion should be illegal in the cases of rape and incest. Fully 77 percent said it should be legal — in a socially conservative, red state. And even Republicans opposed making it illegal in those circumstances by a 2-to-1 margin.”

And yet, the forces opposed to democracy have foisted these absurdly extremist laws on the people of Texas! How did that happen? Money is the biggest factor, but also distractionist politics, hysteria, pervasive, us-vs-them cosmologies, and a sense that what the individual voter thinks doesn’t matter. With the disparity between what Texans want and what they get, who can blame opponents of the SCOTUS leak for feeling hard done by?

This next reader is more optimistic about the democratic process:

You wrote, “The center, in other words, is now wide open. Will anyone — anyone — occupy it?” And the simple answer is: Yes — all those people in the center of the polls you cited (Gallup; Quinnipiac), and many, many more. (I’d add PolitiFact.)

You live and breathe in the sea of political pros and pundits, and all of them are laser-focused on the extremes: the bright red and the bright blue. But the Exhausted Majority is where the rest of us live, and boy are we tired. That’s where this issue — like all political issues — will ultimately get decided, and I think it’ll get decided roughly along the lines of Roe: fairly great freedom to choose in the first trimester or so; some restrictions in the second trimester; and stricter restrictions, probably including a ban (with some exceptions) in the third.  

Another reader notes that democracy has already been deployed quite a bit since Roe:

You wrote, “The issue — which divides the country today as much as it has for decades — is one that apparently cannot ever be put up for a vote.” Voters DO have a say, just not a TOTAL say. Roe and Casey only insulate pre-viability abortions from total bans and bar substantial burdens (e.g., being forced to tell her husband). 

On what other issues that do not concern minority rights should voters be barred from having a total say? On the same page is this reader:

Abortion has already repeatedly been subject to the political process, and even under Roe and Casey the pro-life movement has won the very restrictions you think are needed. Congress passed, and the Supreme Court upheld, a ban on the “dilation and extraction” procedure often performed late in pregnancy. The Court has also allowed states to impose waiting periods and parental consent for minors prior to obtaining an abortion, among other regulations. So even the current constitutional framework you feel is “anti-democratic” recognizes that the right to obtain an abortion is not unlimited and there is some space for the legislatures to step in — and they have.

A teeny-tiny space, compared with every other Western country. Another reader thinks it’s a category error to talk about democracy when it comes to abortion: “Isn’t the Supreme Court supposed to protect those persons who feel that democracy has taken away their liberties?” Nope. Merely “feeling” you don’t have your liberties is not an argument. Another elaborates on that reader’s point:

Some of us think that abortion is a right. And a right isn’t, admittedly, a terribly democratic thing. If we respected only democracy, we never would have had desegregation of the South. We never would have had the end of slavery. We never would have had Loving v. Virginia. Rights are often unpopular. Does anyone doubt that the pure democracy of which you dream would lead to blasphemy being a capital crime in Pakistan? One of the reasons we have a Supreme Court is to balance the democratic will with a respect for rights. 

Say I’m a pregnant 15-year old, or a pregnant mother who can’t afford the children she already has. I don’t want to bring this child to term, but I happen to live in Louisiana, where the legislature voted to ban abortion. What would you say to me? Would it be, “Tough luck — because of the state you live in, you don’t get to have sovereignty over your body”? I would be very interested in your response to that question.

Those rights are related to minorities who cannot prevail democratically — not half the human population. Another reader feels that I “failed to mention one crucial fact”: