The Supreme Court’s Attack on Reproductive Freedom is an Attack on Liberal Democracy

Roe v. Wade is now history, and with it the U.S. constitutional protection of a woman’s right to choose whether or not to carry a pregnancy to term. A half century of medical practice, normative evolution, and legal precedent has been overturned by a Supreme Court stacked with conservative, Trump-appointed judges who have long made clear their opposition to the idea that reproductive freedom is a fundamental right.

Among the many rhetorical weapons long deployed against Roe is the claim that Roe was an affront to “democracy.” 

Back in early May, writer Jason Willick neatly advanced this view in a Washington Post column entitled “Overturning Roe would make America more democratic.” His argument was simply stated: the reproductive freedom established by Roe was decided by a Supreme Court majority, and not an elected body, and overturning Roe means freeing the country from this judicial overreach, so that each of the fifty states can legislate according to the will of its electoral majority. Justice Alito’s majority opinion last week said as much, declaring in its second paragraph that “the authority to regulate abortion is returned to the people and their elected representatives.”

“Returned to.” Democracy restored. 

The implication is clear: if people believe that women are entitled to reproductive freedom, then they can legislate it if they like. The Constitution allows this. But it does not require it. And what could be freer, fairer, and more democratic, say the destroyers of Roe, than allowing elections rather than courts to decide public policy about matters of controversy?

Behind this argument is a view of democracy that is increasingly popular among conservatives in the U.S. and elsewhere, a view whose most articulate proponent is Hungarian Prime Minister Viktor Orban—also increasingly popular among conservatives– who has popularized the notion of “illiberal democracy.”

The basic argument of Oban and his many ardent admirers is simple: liberalism is one thing and democracy is another. And the first is indeed a mortal enemy of the second, an enemy that good people everywhere must vanquish.

Liberalism, on this view, is a doctrine of (bourgeois?) individualism that has run amok in undermining family, nation, Christianity, and Authority. It promotes licentiousness, immorality, gender fluidity, and the killing of unborn babies, and is hostile to the authentic people who abhor such transgressions against decency and the Bible and who comprise the national majority. The hegemony of this liberalism is a form of conquest imposed on the people by nefarious judges, bureaucrats, academics and journalists whose university training and city ways alienate them from ordinary folk (Volk?) in the heartland who constitute The Nation.

Democracy, on the other hand, is popular sovereignty, rule by the people, and the true reinstatement of democracy requires the overthrow of liberalism and the liberals who support it, and the empowerment of elected officials to decide public policy according to the wishes of the true, authentic, real people—and not its liberal enemies and those deceived by them.

On this view, Roe was a form of tyrannical imposition. And overthrowing it has allowed the popular majorities of Alabama, Louisiana, Texas, Indiana, and every one of the fifty states to decide whether or not to grant women any abortion rights in their states. What could be more democratic?

Actually, it is hard to imagine anything less democratic. 

But saying this requires some defense of the unique combination of liberalism and democracy that is liberal democracy, which is neither liberal individualism nor simple democratic majoritarianism, but a historically evolved and tenuous hybrid of the individual rights that is the hallmark of liberalism and the popularly legitimated public decisions that is the hallmark of democracy.

Enemies of liberalism who fancy themselves democrats insist that the “demos” should decide.

But how does a “demos decide?”

Is a popular election sufficient? Or are there certain conditions that are necessary for a popular election itself to be legitimate? And does the absence of such conditions unjustifiably restrict both the ability of the demos to fairly decide and the inclusiveness of the demos itself—so that what transpires is a form of electoral authoritarianism masquerading as “democracy?”

Liberal democracy’s answer is straightforward: the demos ought to decide through a procedure in which each individual member of the demos, i.e., each citizen, is considered as an equal bearer of rights—the right to vote, but also the freedom of belief and expression, the freedom of association, and the freedom to publicly contest elections. An election or a public policy made by an elected legislature cannot be considered free and fair unless each citizen has an equal liberty to participate, be heard, and have their vote counted equally and fairly. On this view, for certain citizens to be silenced, prevented from freely speaking and associating, or otherwise limited in their ability to participate in public affairs, is to impair democratic legitimacy itself.

Popular sovereignty, in other words, must be the outcome of a free, fair, and inclusive democratic process in order for it to be legitimate.

The logic of the SCOTUS decision and the Alito opinion overturning Roe runs directly contrary to this conception of liberal democracy. For it holds that the entire concept of a substantive “right to privacy” has no constitutional or democratic legitimacy, and that it is entirely legitimate for elected officials to legislate on a wide range of matters now covered by “privacy.” On this logic, the exercise of reproductive freedom, the ability to obtain contraception, and the freedom to have sex with, cohabit or marry the adult person of one’s choice are all concerns properly decided by elected state legislatures, and indeed it is only when such matters—and their limits—are so decided that we can be said to live in a true democracy.

Put another way: on this logic, it is entirely legitimate for states to outlaw abortion, contraception, non-heteronormative sex, non-heterosexual and perhaps even interracial marriage and to still claim to be democracies. And, in the same way, it is entirely legitimate to treat women seeking abortion and the doctors who furnish them with reproductive health care—along with a wide range of other categories of people seeking to enjoy privacy in their intimate lives or to pursue their professional vocations without interference–as criminals, and doing so does not in any way impair their rights as citizens.

This position is preposterous.

In the 21st century–which is not the 18th century–to abolish a general “right to privacy” is to relegate entire categories of people to the status of second-class citizens who live under a potential or an actual cloud of suspicion, are denied the freedom to be the people that they are, and are at risk of criminal prosecution if they behave as the people that they are.

If one believes—as do white supremacists, so-called Christian nationalists, Catholic “integralists,” and other far-right activists—that such people are not “authentic,” that they are “deviants” who defy God, subvert tradition, and “harm” more ordinary citizens through their “immorality,” then this is no problem at all.

But to believe this, and to turn this belief into public policy, and then claim to be “democratic,” is little different than those Stalinists and fascists of the last century who also claimed to stand for a higher form of “democracy” beyond mere “bourgeois democracy,” and then on the basis of this claim persecuted entire classes of people. This is a recipe for oppression, tyranny, and illegitimacy. And in the case of abortion, given the very strong public support for at least some measure of reproductive freedom, it is indeed a recipe for the oppression of the vast majority of Americans by a benighted and fanatical minority.

Back in the middle of the 19th century, as the struggle for democracy raged and activists and intellectuals were negotiating the terms of coexistence between liberalism and democracy, the French writer Benjamin Constant argued that any democratization of political life needed to respect what he called “modern liberty”:

“the right to be subjected only to the laws, and to be neither arrested, detained, put to death or maltreated in any way by the arbitrary will of one or more individuals. It is the right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings. It is everyone’s right to associate with other individuals, either to discuss their interests, or to profess the religion which they and their associates prefer, or even simply to occupy their days or hours in a way which is most compatible with their inclinations or whims. Finally it is everyone’s right to exercise some influence on the administration of the government, either by electing all or particular officials, or through representations, petitions, demands to which the authorities are more or less compelled to pay heed.”

I quote Constant not because everything he says was or is valid, but because, writing in the wake of the phase of the French revolution known as the “reign of terror,” he made one very valid point that was only confirmed by the totalitarian regimes of the next century: without some protections for the civil autonomy of individuals, and a civil society in which individuals conduct their personal affairs by and large for themselves, and enter the public realm as they choose, all citizens will live in fear of arrest, detention, mistreatment, and persecution. In such a setting, the appeal to “democracy” might have some rhetorical traction. But it can only be a cruel and unusual form of semantic perversion that serves the cause of tyranny.

The SCOTUS demolition of the reproductive freedom enunciated by Roe is one salvo in a much broader right-wing assault on liberal democracy itself. Efforts to use school board elections as a means of attacking academic freedom are another. And of course, the relentless assault on voting rights, and on free and fair elections, that is ongoing throughout the fifty states, is the most obvious and powerful means through which a repressive, fanatical, and anti-liberal approach to “popular sovereignty” is being pursued.

These efforts may seem distinct. But they are not. For they are being pursued by the same individuals and groups and under the banner of the same political party—the MAGA Republican party led by Donald Trump, Tucker Carlson, and Sean Hannity, with the obsequious support of Mitch McConnell, Kevin McCarthy, Ron DeSantis, and a cast of millions. And they are being pursued with the same purpose: to roll back over a half-century of scientific and medical progress, environmental progress, and most importantly progress in the achievement of civil rights, voting rights, women’s rights, and LGBTQ rights. 

“American Greatness?” At stake is nothing less than the very social identities of millions upon millions of Americans, and the freedoms without which equal citizenship and constitutional democracy are impossible.

Last week’s SCOTUS decision, punctuating as it did the ongoing revelations of the House January 6 Committee, underscored something that grows clearer by the day: liberal democracy, along with the tenuous forms of social justice it makes possible, is now on the chopping block. Every further Republican gain will represent a further assault, a further curtailment, a further defeat. Holding back a top-to-bottom “red wave” in the November election will be a monumental task. Preventing another Trumpist presidency in 2024—whether or not Trump himself is the Republican candidate—will be another.

Only if these efforts to forestall Republican victories succeed is there any chance of turning back the authoritarian tide. And only then will it be possible to achieve real progress, through national reproductive freedom legislation, national voting rights legislation, and the other kinds of social and environmental reform necessary if the U.S. is to avert disaster, much less move forward toward “a more perfect union.”

The Court has delivered the American public a piercing wakeup call, attacking not simply the reproductive freedom of women but the very idea of liberal democracy. We must do what we can to amplify its reactionary message, in the hope that increasing numbers of people will wake up to the danger, and then work politically to defeat it.

Jeffrey C. Isaac is the James H. Rudy Professor of Political Science at Indiana University, Bloomington. Editor in Chief of Perspectives on Politics, a flagship journal of the American Political Science Association, from 2009-2017. Author of #AgainstTrump: Notes from Year One (2018), Professor Isaac has published in a range of public intellectual venues, including Public Seminar, Common Dreams, Dissent, the Nation, Los Angeles Review of Books, and the Guardian.

This piece was originally published on June 28th, 2022 on the Democracy in Dark Times platform.