When the Supreme Court granted abortion rights to women in all 50 states in 1973, it was closely aligned with the changing zeitgeist. In the late 1960s, a large majority of Americans had still disapproved of abortion, but in a poll conducted by Gallup in January 1973, shortly before the landmark verdict Roe v. Wade decreased, said they are now 46% in favor of legal abortion in the first trimester of a pregnancy, 45 percent were against and 9 percent undecided.
Half a century later, abortion is even less controversial: in a Gallup poll from May, 58 percent said they want to keep ‘Roe’. So when the Court ruled on Friday that abortion would once again be a matter for individual states, now banning it in half the country, the six conservative judges imposed an outdated position on the US. What else can the left America do against this ‘tyranny of the minority’?
1 Anchoring ‘Roe’ in a federal law
After Friday’s ruling, President Joe Biden, among others, argued in favor of having national abortion law protected by lawmakers. This could be done, the Democrat argued, by “restoring to Congress the guarantees that Roe v. Wade offered by federal law.” There is already a bill to this effect, the Women’s Health Protection Act† This proposal builds on the verdict ‘Planned Parenthood v. CaseyIn 1992, the Court ruled that states should not impose an “excessive burden” on women and abortion clinics.
Last year, the House already passed this proposal, where the Democrats have a majority. However, the Senate blocked it. This chamber is currently split 50-50 between Democrats and Republicans, with Vice President Harris deciding for the ruling party in a tie vote. In practice, however, at least 60 votes are needed to filibuster: A delaying tactic that allows the minority to block a proposal indefinitely.
2 Abolish Filibuster
To get a nationwide abortion legalization through the Senate, the Democrats can abolish the filibuster. This is called the ‘nuclear option’ in Washington: a heavy weapon that you only use once and can turn against you later. After all, if the opposing party again controls Congress and the White House in the future, they can do whatever they want. This is a real specter for Democrats: They risk losing their majorities in the Congressional elections in November. And Republicans are already preparing a nationwide abortion ban when they return to power.
3 Making a compromise with moderate Republicans
If the filibuster is not abolished, there is one option left: compromise with moderate Republicans. Last year, two of them, both female, served already in a proposal to make ‘Roe’ law. This one Reproductive Choice Act goes less far than the Democrats’ proposal, but still got stuck in the Senate. It may get another chance after Friday’s verdict. A conservative Democrat like Joe Manchin, a notorious blocker in the ruling party, released a statement that he would support a bipartisan initiative to “enshrine in law the rights ‘Roe’ previously protected.”
4 Expand Senate with additional seats for DC and Puerto Rico
A major reason the Court is so much more conservative than society is the Senate, which appoints the judges who nominate a president. Sparsely populated, right-wing rural states have proportionally more weight in electing senators than progressive states. To counteract that right-wing over-representation, Democrats could expand the number of seats by making the metropolitan District of Columbia and free-state Puerto Rico into full-fledged states. This would create four seats. And since DC and Puerto Rico are considered leftists, they would almost certainly go to the Democratic Party.
5 Court-packing: stuff the Court with extra judges of your own
A larger, left-wing Senate could turn down conservative right-wing candidates like President Trump’s three from now on. Another option to make the Court less conservative is to increase the number of judges with only their own left-wing candidates. The last time a president did this seriously considered (Roosevelt in 1937), he didn’t.
6 Spreading Abortion Pills
In the short term, a practical solution is likely to offer women more solace than a political or legal one: abortion pills. In 2020, for the first time, more than half of American women who terminated a pregnancy did so with medication, such as misoprostol. These pills are sent by post, after which it is explained by telephone or the internet how ingestion works. Some right-wing states want to ban them, but because the Food and Medicine Watchdog (FDA) considers them safe, the Biden administration wants to appeal.
A version of this article also appeared in the newspaper of June 27, 2022