Last week, Justice Samuel Alito’s lifelong vendetta against abortion rights reached its zenith as he published his majority opinion in Dobbs v. Jackson Women’s Health Organization, largely unchanged from the draft leaked last month. The decision upheld Mississippi’s 15-week abortion ban and overruled the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey.
In the opinion, Alito makes sure to point out that the decision isn’t a total ban on abortion, but simply returns the issue—the issue of whether women have equal rights—to the people to decide. “Women are not without electoral or political power,” he writes. “It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”
In his concurrence, Justice Brett Kavanaugh, too, emphasized that Dobbs “leaves the issue for the people and their elected representatives to resolve.” Both opinions tout the result as aligned with democratic principles: People who disagree with it can simply vote or run for office to make their voices heard.
This is disingenuous. Alito and his conservative colleagues have spent the last decade eviscerating voting rights, and particularly for Black and Latina women who made up only 16 percent of the 2020 electorate. While it is true that women register and cast ballots at higher percentages than men, white women consistently have higher turnout rates than women of color. Black and Latina women are disproportionately likely to seek abortion care, and thus disproportionately likely to be harmed by the right’s disappearance.
Thanks to the Court’s recent decisions on voting rights, gerrymandering, and democracy, to “return the issue of abortion to the people’s elected representatives,” as Alito puts it, simply means leaving the question of bodily autonomy to Republican-controlled state legislatures.
Nearly a decade ago, Chief Justice John Roberts’s vendetta against voting rights reached its zenith in Shelby County v. Holder, when the Court dismantled key aspects of the Voting Rights Act on the grounds that the pesky issue of white supremacy no longer exists. As a result, states with histories of racial discrimination at the ballot box were no longer required to obtain federal or judicial pre-approval of changes to their voting laws, freeing them to return to the good ol’ days of weaponizing the law to obstruct actual democracy.
A cascade of voting restrictions followed. In 2018, the Brennan Center found that voters in 23 states faced tougher voting restrictions than they did in 2011, and the racial gap worsened in voter turnout in states previously subject to preclearance requirements. Shelby County quickly reversed decades of work to reduce racial disparities in voting: According to the Brennan Center, in 2012, seven of the eight states freed from supervision in Shelby County in 2013 had higher Black turnout compared to white voters. By 2020, only one of those states had higher Black turnout. Since the 2020 election, Republican state legislatures have capitalized on President Donald Trump’s “Big Lie” to pass another flurry of voter restrictions. Arizona lawmakers have introduced over one hundred “voter reform” bills this year alone.
Last year, the Court took a hammer to another part of the Voting Rights Act in Brnovich v. Democratic National Committee, hollowing out one of the only remaining pathways for challenging discriminatory voting restrictions. In Brnovich, the Court overhauled the test for determining whether a given election rule is constitutional; going forward, courts must analyze laws in the context of restrictions that were common in 1982, when Congress amended the relevant section of the VRA. By doing so, the Court effectively froze voting rights midway through Ronald Reagan’s first term—not an era particularly well-known for equal access to the ballot box. By reassuring women of color in Dobbs that they can simply vote to make their voices heard, the justices offer a meager recourse they themselves have destroyed.
Alito’s conclusions also assume the electorate adequately represents the interests of everyone affected by Dobbs. It does not. According to the Pew Research Center, in the 2020 election, people with higher incomes were much more likely to cast a ballot than those with lower incomes. Those with incomes of $100,000 or more constituted 25 percent of the voter population and only 10 percent of nonvoters; people with incomes of $50,000 or less constituted 35 percent of the vote, but also 62 percent of nonvoters. Even if women cast more ballots than men, the women who are able to do so are not representative of all women.
The Court’s acquiescence to extreme political gerrymandering makes it even less likely that women’s voices will be heard at the ballot box. In 2019, the Court in Rucho v. Common Cause washed its hands of responsibility for reining in political gerrymanders, claiming the federal judiciary does not have power to do so. Today, the GOP controls the vast majority of state legislatures, even in states where the party does not have the popular vote. In Ohio, where Trump won 53 percent of the vote in 2020, the party controls three-quarters of seats in the state Senate, and two-thirds of the state House. Democratic presidential nominees have won the popular vote in six out of the last seven presidential elections, but as The New York Times notes, that hasn’t translated to control of state legislatures: The GOP controls both legislative chambers in 23 states, while Democrats control only 14.
Having been given the greenlight to gerrymander to their heart’s content, state legislatures are now redrawing post-2020 Census electoral maps to again secure supermajorities for the GOP. Of the 35 states in which lawmakers draw these maps, Republicans control the process in 20 states, compared to only 11 for Democrats. (The four remaining states have split legislatures.) Leaving abortion to “the people” is more accurately leaving it in the hands of the political party who confirmed the conservative justices that made this decision.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan penned a rare joint dissent in Dobbs that lays out the real consequences of allowing states to decide whether women have equal rights. Although “the majority tries to hide the geographically expansive effects of its holding,” they write, leaving abortion access to states “is cold comfort, of course, for the poor woman who cannot get the money to fly to a distant State for a procedure.”
Kavanaugh and Alito’s suggestion that women of color who want to uphold their right to bodily autonomy “just vote” is a hollow solution. Those most affected by Roe’s overruling will have to find other ways to protect access to abortion care. But the democratic process has failed them already. The Supreme Court made sure of it.