What Should the Democrats Say About Abortion Rights?

Almost two years ago, the Supreme Court eliminated the constitutionally protected right to an abortion and passed the issue to Congress and state legislatures. Now, the Democrats are once again posing as abortion champions. In January, Kamala Harris went on a nationwide tour to support reproductive rights. In Wisconsin, she touted the Biden administration's steps to circumvent the Supreme Court. “These extremists are trying to take us backward, but we’re not having that,” she told a crowd in Milwaukee. Meanwhile, in Washington, Biden said that “extreme” abortion laws have “no place” in the United States. 

Something doesn’t smell right. This is the same Democratic Party that refused to pass the Freedom of Choice Act and considered nominating an anti-abortion federal judge one day before the Dobbs ruling. But for the sake of argument, I will suspend my disbelief and take Biden and Harris at their word. So, assuming a genuine desire to protect women’s rights, what should the Democratic Party say about abortion rights? 

If the Democrats cared about abortion access, they’d talk about our undemocratic political system. How else could a policy with majority support not be law? They’d point out that Donald Trump lost the popular vote, selected three lifetime Justices, and watched those Justices be confirmed by a Senate majority that collectively won a minority of the popular vote in Senate elections and represented less than half of the American population. They’d point out that far from being the “people’s elected representatives,” Justices are not elected, are susceptible to corruption, and do not represent the majority opinion about abortion access. They’d point out that the Senate — a uniquely undemocratic institution — blocked the passage of the Women’s Health Protection Act in 2022. They’d push back against Justice Samuel Alito (who wrote that it was time to “heed the Constitution and return the issue of abortion to the people’s elected representatives'') and explain that state legislatures can be just as antidemocratic as the federal legislature. According to Levitsky and Ziblatt, “as many as sixteen states could pass restrictive abortion laws that are opposed by a majority of the state’s population.” 

All of these issues come down to the Constitution. The Democrats aren’t weak or stupid; they know how the political institutions in this country function. If Democrats wanted to stop Trump, lift children out of poverty, protect the environment, respect veterans, decrease police power, or defend abortion access, they’d talk about the Electoral College, the Senate, and the Supreme Court as institutions that entrench minority power and deny universal and equal suffrage. They’d say something about the filibuster, the first-past-the-post electoral system, gerrymandering, or the impossibility of passing amendments. If Democrats cared about democracy, they’d demand a democratic Constitution. Yet, not a peep.