The Looming Reversal Of Roe v. Wade Is Another Perilous Sign For American Democracy

This article is part of a larger series titled “The End Of Roe.” Head here to read more.

Globally, abortion rights and access have broadly expanded in the 50 years since the Supreme Court’s decision in Roe v. Wade made the practice legal in the United States. But a small number of countries have moved in the opposite direction, especially in the last decade, seeking to outlaw abortions, harden existing bans, or enacting new restrictions.

These nations ― countries like Brazil, El Salvador, Hungary, India, Nicaragua and Poland ― share one major commonality: They are almost exclusively countries that experts consider “backsliding democracies,” in which abortion access is one of many rights under threat.

Now, the United States ― itself now widely considered a democracy in decline ― is about to join them.

Later this month, the Supreme Court is expected to fully overturn Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide. A decision that follows the contours of the draft opinion that leaked in early May would have dire consequences for reproductive rights, likely making abortion illegal or heavily restricted in nearly half of all states.

Much as in those other nations, the attack on abortion rights is not occurring in a political vacuum: It is on the brink of success thanks to the same dynamics causing the United States’ own democratic backsliding.

Roe is under threat thanks to a conservative political project that has made a mission of targeting the basic individual rights democracies by definition protect, and because the country’s increasingly undemocratic political system has disproportionately advantaged political minority rule and fueled its radicalization. Roe’s demise is inseparable from the larger democratic crisis facing the country: It is yet another perilous sign for the future of not just reproductive freedoms but of American democracy as a whole.

“This does not track with what democracies do,” said Sophia Jordán Wallace, a University of Washington political scientist who has studied the relationship between abortion rights and democracy. “Democracies have been expanding access to abortion, and accepting that this is part of health care and part of people having control over their own bodies and health. It’s really alarming.”

Efforts to restrict abortion rights have generally gone hand in hand with broader attempts to undermine democracy. In Poland, a court decision that almost totally outlawed abortion occurred alongside a larger erosion of fundamental rights under the governing Law and Justice Party.

Right-wing Brazilian President Jair Bolsonaro has waged an unrelenting assault on his country’s democracy since taking office in 2019, and is openly plotting ways to undermine upcoming presidential elections. Abortion is broadly illegal in Brazil, but Bolsonaro has sought to limit access even further.

In August 2020, a 10-year-old girl attempted to get an abortion to end a pregnancy that resulted from her repeated rape by a relative. Brazil allows abortions in instances of rape or incest, but she was rejected at the hospital nearest to her home and forced to obtain a court order to go forward with the procedure. Conservative anti-abortion activists published her name online, and she faced threats and criticism, even from prominent officials within Bolsonaro’s government.

Similar cases in other Latin American countries have kick-started movements to expand abortion access and bolster women’s rights more broadly, but in Brazil, the 10-year-old’s plight generated a surge in efforts to block abortions. The number of legislative proposals seeking to limit access to abortion, which had already increased dramatically under Bolsonaro, rose even further. Bolsonaro’s government, meanwhile, issued an order requiring doctors to report legal abortion procedures to police.

The United States is generally considered a more established democracy than countries like Brazil and Poland, nations that transitioned to democratic governance in the 1980s and 1990s. But Roe v. Wade occurred in the midst of a rapid period of American democratization, as the United States transformed itself from a partial democracy into one that attempted to include and represent all ― or at least most ― of its citizenry.

The decision was handed down 20 years after Brown v. Board of Education ruled school segregation unconstitutional and less than a decade after the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 outlawed much of Jim Crow and vastly expanded the rights of Black Americans. It came in the midst of a stop-and-start push for women’s rights: Roe followed failed efforts to add an Equal Rights Amendment to the Constitution and the successful passage of Title IX. It occurred alongside the spread of feminist protests that led to laws addressing violence against women. It preceded the first statutes outlawing marital rape, which is now illegal in all 50 states.

Its downfall is occurring during a similarly rapid period of reversal.

The Supreme Court gutted key parts of the Voting Rights Act in 2013 and further undermined the law this year, decisions that have fueled conservative attempts to suppress the votes of Black people and other racial minorities.

Those efforts have accelerated thanks to Republicans’ false claims that the 2020 election was stolen. The states that have most aggressively moved to curb voting rights and create new criminal penalties around elections ― Texas, to name one ― are also those that have enacted the most restrictive abortion laws. It is perhaps no coincidence that Mississippi, the state that generated the case that will likely lead to Roe’s overturn, is among the most suppressive of its Black population’s right to participate in the democracy the United States claims to be.

The slide backward may not stop with Roe. There are legitimate fears that its reversal will embolden conservatives to seek the invalidation of other decisions that protect fundamental rights, including those in Griswold v. Connecticut, which protects contraception access; Loving v. Virginia, which ruled laws against interracial marriage unconstitutional; and Obergefell v. Hodges, which legalized same-sex marriage nationwide.

In the leaked draft opinion that twists legal logic to invalidate Roe, Justice Samuel Alito wrote that “our decision concerns the constitutional right to abortion and no other right.” But that requires ignoring both Alito’s record as a jurist and the basic implications of his ruling. If the federal government has only the authority to protect rights that are “deeply rooted in the nation’s history in tradition,” as Alito wrote, any number of rights that it didn’t explicitly acknowledge 230 years ago are obviously at risk.

Already, some right-wing state lawmakers and candidates are suggesting that they will seek to ban contraception. And this spring, Sen. Mike Braun (R-Ind.) said he believed that states should have the final say on the legality of interracial marriage.

Braun later walked back his comments, but that hasn’t mollified concerns that conservatives may soon seek to relitigate the seemingly settled question of whether Black and white Americans can marry anywhere in the U.S. Same-sex marriage, a newer freedom, may be even more vulnerable. Jim Obergefell, the lead plaintiff in the case that guaranteed marriage rights for LGBTQ Americans, is already preparing for the worst: “My job,” he told Axios last month, “is to help people understand just how afraid they should be.”

In a healthy democracy, none of these rights would be in peril. Americans support them all: Roughly 60% of the country believes abortion should be legal in most cases, a number that hasn’t changed for 30 years, according to the Pew Research Center. American attitudes on abortion are nuanced, and the public may favor more restrictive laws than most Democrats or reproductive rights groups do. But roughly 70% of the country says it opposes overturning Roe altogether. And it may be the least popular of those rights that may now be in question.

They are under threat now not because most Americans want to restrict them but because the country’s increasingly anachronistic political system makes it so easy for conservative minorities to win and exert power ― even and especially when they don’t have majority support.

Consider the bizarre and anti-democratic circumstances that led to this moment. Republican presidential candidates have won the popular vote just once in the previous eight elections. But former President Donald Trump, who lost a majority of votes in the 2020 election but won the presidency thanks to the Electoral College, appointed three of the five Supreme Court justices who are likely to vote in favor of Roe’s invalidation.

One of those seats is occupied by conservative Justice Neil Gorsuch because Republican leaders in the Senate ― an anti-democratic institution that grants more political power to rural conservatives than it does to a majority of American voters ― refused to hold confirmation hearings for a Democratic president’s nominee. And when liberal Justice Ruth Bader Ginsburg died months before the 2020 election, that same Republican majority rushed to confirm a conservative replacement, disregarding the very “norm” they had cited just four years prior. At no point during Trump’s presidency did the Senate Republicans who confirmed the three justices represent a majority of the American people.

The Senate and the Supreme Court may be the country’s two most democratically distorted institutions. But Congress is also now impossibly gerrymandered in a way that leaves it largely unresponsive to public opinion or the electorate itself.

State legislatures, the most heated battlegrounds over abortion rights and democracy, are even more gerrymandered and even less competitive. In states like Wisconsin, which will outlaw abortion if the Supreme Court invalidates Roe, it’s virtually impossible for Democrats to gain state legislative majorities even when they win the popular vote: In 2018, Wisconsin Republicans won 45% of the statewide vote but 65% of the seats in the state Assembly.

That has only fueled the GOP’s rush to the far right. Thanks to gerrymandering and the country’s geographic polarization, the vast majority of American elections are now uncompetitive. Primaries are the only place for many voters to exert their will on their representatives, and the easiest path to victory, especially on the right, involves staking out increasingly radical positions on voter fraud, “critical race theory,” or any other right-wing cause that has been used to erode basic democratic rights.

Abortion is no different. In recent years, and especially since the Supreme Court allowed a Texas law that effectively banned most abortions in the state to go into effect, Republican state legislatures have entered a death spiral of ever more aggressive restrictions. The 20-week abortion bans that were the Republican cause célèbre not long ago are no longer sufficient: The law that generated the current challenge to Roe was a 15-week abortion ban, and by the time it progressed to the Supreme Court, it was lenient compared to what followed. The Texas law banned abortion at six weeks, and has served as a road map for other states. But even its run as the country’s most extreme abortion law lasted mere months before Oklahoma enacted an even harsher statute.

Florida, meanwhile, banned abortion at 15 weeks even in cases of rape or incest, a position that once ended the careers of prominent Republican politicians but is now increasingly popular on the right.

The party’s takeover of the judiciary and its secure Supreme Court majority, meanwhile, created the circumstances that made Roe’s overturn a near certainty, even in a case that didn’t originally seek that outcome. And although Democrats hope the ruling will generate severe political backlash, the minoritarian aspects of the country’s political system may insulate many Republicans ― especially in Congress and state legislatures ― from any blowback.

“Not only do the rules right now tilt toward Republicans, but Republicans are exploiting those rules,” said Steven Levitsky, a Harvard professor and co-author of the book “How Democracies Die.”

“Those countermajoritarian institutions that favor a partisan minority are not just protecting and empowering a partisan minority,” he said. “They are protecting and empowering a partisan minority that has gone off the rails, a partisan minority that has become an anti-democratic force. It’s the combination of Republican authoritarianism and countermajoritarianism that makes it so dangerous.”

Once democratic declines begin, they are difficult to stop. In Poland, massive protests derailed legislative efforts to curb abortion rights after the right-wing Law and Justice Party swept to power in 2015. But the party got its way through less democratic means: It invalidated the appointments of five justices on Poland’s top constitutional court, replacing them with conservative allies. In 2020, the court overturned laws protecting abortion in cases of fetal abnormality, almost immediately making 98% of procedures performed in the country illegal.

The party has continued to strip away basic democratic rights since. Poland is now considered the world’s most rapidly autocratizing country, according to V-Dem, an organization that monitors and assesses democracy globally. Freedom House, another such group, stopped considering Poland a “full democracy” in 2020, and last year rated it as the fastest-declining democracy among 29 countries it studied in Europe and Central Asia.

Bolsonaro and his allies have not successfully enacted new laws to further curb abortion rights, but access to legal procedures has nevertheless dwindled since he took office. Just 42 hospitals now perform legal abortions in Brazil, half the number from three years ago, according to researchers.

That’s in part due to the COVID-19 pandemic, but the virus also became a guise to suspend legal reproductive health and contraception services, according to Human Rights Watch. Bolsonaro’s government removed two officials from their posts at Brazil’s Ministry of Health after they issued an advisory that sought to improve access to reproductive health during the pandemic. And the climate of fear Bolsonaro has instilled has made nurses and doctors scared that even legal procedures ― like those related to miscarriages ― will lead to prosecution or the loss of medical licenses.

Nearly every global organization that evaluates democracies now regards Brazil’s ― the world’s fourth-largest ― as in decline. It ranks in the top 10 of countries where democracy has eroded the most in the last two years, according to V-Dem. Experts warn that it could be in even more peril if Bolsonaro prevails in October’s presidential election, or attempts to undermine the results if he doesn’t.

Reduced abortion rights are a symptom of that democratic backsliding, not their cause. But they are an integral part of the decline: Poland’s experience “suggests that disregard for reproductive rights may both reflect and, in turn, intensify weaknesses in democratic culture and contribute to the broader erosion of legitimate institutions,” Atina Krajewska, a law professor at the University of Birmingham in England, wrote in a 2021 article.

It’s possible the Supreme Court’s ruling will have the opposite effect. It may be “such an obscene imposition of minority rule that it’s going to make many Americans, and many mainstream American [political] actors, much more aware of the problem,” Levitsky said. “It’s going to take a hack at the legitimacy of a political system that’s already bleeding legitimacy.”

But if it doesn’t ― if American democracy continues its steady march toward a more authoritarian future ― the demise of Roe v. Wade will serve as an illuminating signpost on the road there.