OPINION: Supreme Court's Returning Abortion Issue to Voters Requires a Robust Right to Vote that's Sometimes Missing

The following opinion article represents the views and opinions of the author alone, and not necessarily those of Westwood Minute.

By John Aram, Contributor

Recognizing that abortion presents “a profound moral question,” the Supreme Court’s recent decision in Dobbs returned authority to prohibit or regulate abortion “to the people and their elected representatives,” most immediately to state legislatures and governors. This decision is already impacting women’s abortion rights in a number of states, but it also raises a question about the viability of democracy nationally, in Massachusetts, and as well as in Westwood, itself.

In overruling Roe v. Wade, the Court eschewed compromise on the question of abortion. Roe had struck a compromise between a woman’s interests and a fetus’s life interest by allowing abortion up to the viability of an unborn child outside the womb, assumed to be around 23 weeks. By shortening the period for a legal abortion to 15 weeks, the Mississippi law at question in Dobbs continued to strike a compromise on this difficult ethical question. The Court, however, took an uncompromising view against an ability of women to choose to abort under any circumstances. A Court majority determined that this question should be settled by “the people” through various legislatures and possibly referenda.

Delegating policy to the people and their representatives would be a more convincing maneuver if the present Court were also vigorously defending free and fair democratic practices. Unfortunately, recent Court decisions support the opposite conclusion—the Court has gutted the discrimination protections of the Voting Rights Act of 1965, allowed various forms of voter suppression, and abdicated oversight of extreme gerrymandering.[1] If the conservative majority truly wanted to return the abortion question to the people, it would be policing voting rights assiduously.

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The current Court’s dissembling on democracy reveals its anti-abortion bias. An unwillingness to defend democracy allows the popular will in a number of states to be suppressed and makes it less likely that some form of abortion rights will be legislated in those states, if that is what the “people” in that state wanted, and more likely for anti-abortion laws, even that is not what the “people” would want.[2] 

"Delegating policy to the people and their representatives would be a more convincing maneuver if the present Court were also vigorously defending free and fair democratic practices. Unfortunately, recent Court decisions support the opposite conclusion."

To this observer, it appears that the Court’s policies can be understood in terms of the majority’s conservative values—issues are returned to the states when a significant portion of states are likely to enact the Court’s preferred position, such as anti-abortion. But, when a significant portion of states are likely to take an action not favored by the Court, such as the commonsense law in New York State regulating concealed carry, the conservative majority finds that action unconstitutional.

Whatever one’s stance on abortion or other controversies of the day, we should all want our state and local communities to be as democratic as possible. We can be proud that Massachusetts stands out as a leader in promoting voting. Since 2018, we have had automatic voter registration, and recently the State has extended the option of virtual attendance at public meetings. In addition, MA has recently made early voting and mail-in voting permanent, and mail-in voting is now available to incarcerated persons.

Westwood also stands out in terms of voter participation. In the general election of 2020 66.1% of registered voters nationwide voted. In Massachusetts, the percentage was 76%, but in Westwood, it was an impressive 87.6%. Yet, we should guard against complacency. There are strong anti-democratic forces at work in our country, and it will be hard to be a democratic community or state if the country becomes increasingly autocratic.

Whatever our differences, we should unite to demand the Court back up its rhetoric about “the will of the people” by overruling extreme gerrymandering, voter suppression laws, voter ID requirements and other measures that discourage participation. Westwood can serve as a model for other communities by taking our franchise seriously and continuing to show an exceptional rate of electoral participation.

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[1] https://www.vox.com/22575435/voting-rights-supreme-court-john-roberts-shelby-county-constitution-brnovich-elena-kagan

[2] https://www.brennancenter.org/our-work/analysis-opinion/supreme-courts-abortion-ruling-shows-what-happens-when-democracy-thwarted

Editor's note: Westwood Minute welcomes John Aram, a retired professor of management policy, and a recent resident of Westwood, as a Contributor. Professor Aram's opinions are his own. Westwood Minute takes no position on the opinion articles that it publishes, but seeks accurate and thoughtful commentary on topics that matter to our community, from a variety of differing viewpoints. Reply with your reaction below, or submit another perspective to WestwoodInAMinute@gmail.com.