Opinion | If Roe is overthrown, democracy could be the best way to fight abortion

Much earlier than opponents hope and supporters fear, Roe vs. Wade may no longer regulate abortion rights in the United States, and each state may be faced with the challenge of enacting its own laws in this complex area.

Here’s an idea they should consider: democracy, specifically, allowing voters to decide abortion laws for their state through referendums.

To many Americans, accustomed to the fact that abortion laws are passed by judges, this may seem like a strange idea, but in fact, it is even stranger that judges enact abortion laws. In most other democracies, abortion laws have been passed more democratically, either by elected representatives or by the voters themselves in referendums.

This second option, referendums, is especially attractive to an issue like abortion because it boils down to core issues of community values ​​and is not overly technical. Public debate, followed by an opportunity for voters to decide directly on the issue, will lead to a result that reflects the prevailing community opinion; those on the losing side may not like it, but they are less likely to question its legitimacy

While some fear that referendums will polarize the electorate and lead to extreme results, this has not happened in other countries. This includes predominantly Catholic countries, where voters have had to weigh the church’s resistance to abortion against more secular issues and values. It turns out that controversial issues in which religion influences the opinion of many voters are actually good controversies that should be resolved in a referendum.

Ireland shows how this can be done. In 2016, parliament created a citizens’ assembly made up of 99 randomly selected citizens, chaired by a Supreme Court judge, to consider the issue of abortion. At the time, a deeply Catholic country prohibited abortion unless there was a serious risk to the woman’s life. The meeting heard the views of experts from both sides and deliberated for several months before recommending a nationwide vote on the issue. Parliament followed the advice and held a referendum in 2018 in which 66 percent of voters approved constitutional amendments to allow abortion. While this was not the outcome that everyone preferred, the Irish people generally accepted it as legitimate and the issue was settled civilly.

In a similar vein, the predominantly Catholic Mediterranean microstates of Gibraltar and San Marino recently held referendums to legalize abortion. More than 60 percent of voters approved legalization in both countries.

One of the advantages of enacting an abortion law through a referendum is that it is a democratic procedure, and experience has shown that voters are more willing to make public decisions when they are taken through a democratic process rather than through the courts. The comparison between Italy and the United States is instructive. In the United States, abortion has been legalized by nine unelected Supreme Court justices who are not accountable to voters. This decision sparked a storm of controversy, led to the creation of interest groups fully focused on overturning or maintaining the decision, and made abortion one of the most controversial issues in American politics that it remains today. Italy, a predominantly Catholic country in which even the Vatican is located, legalized abortion, but did it democratically with a nationwide referendum in 1978. This, in fact, settled the issue, and it did not become as controversial an issue as in the United States.

Some fear that allowing voters to decide abortion policy will lead to extremism. But this, most likely, will lead to moderation, because the voters themselves are fundamentally centrist in this matter. While pro-life and choice activists tend to be extreme – prohibiting abortion under all circumstances or permitting abortion under all circumstances – polls show that most Americans reject both of these extremes… The vast majority tell sociologists that they would allow abortion to protect the mother’s life, and in cases of rape or incest. The vast majority would also prohibit it under some circumstances, such as when choosing the sex of the child. Most Americans prefer politics somewhere between the extremes, and if they vote in a referendum on this issue, there is every reason to believe that they will choose the middle path. As a result, while some states may pass laws such as the 6-week ban currently in force in Texas, states holding abortion referendums are likely to keep the practice legal in more circumstances.

The limited appeal of extreme views is illustrated by Mississippi’s Initiative 26 in 2011 and North Dakota’s Measure 1 in 2014. Both measures suggested defining life as the beginning at the moment of conception. Since this would make abortion tantamount to murder, as a result, abortion would be declared illegal under all circumstances. Mississippi and North Dakota are conservative states, but voters rejected both proposals by more than 15 percent.

On the other hand, if abortion policies are determined by elected officials, it is easier to imagine the emergence of extremist policies. The parties are now highly polarized and controlled by their most dedicated and ideologically minded members. Once a party comes to power, its instinct is not to rule towards the middle, but to appease its base — this is not a recipe for compromise.

Some may wonder if we can trust voters to make important political decisions. It is worth remembering that Americans have long voted on important state and local government policy issues, and the vast majority of voters approve of this… All but one state requires voters to approve every constitutional amendment, and some states require voter approval to issue bonds, raise taxes, and various other issues. Most of the voting options are proposed by the legislature, but 24 states allow citizens to propose laws as well, using the so-called initiative process, and 82 percent of major cities allow initiatives. Initiatives and referendums are over a century old, and historical evidence shows that voters in most cases make smart choices, at least as smart as those made by legislators.

In a survey earlier this year73 percent of Americans said it would be nice to use referendums to determine important government policies, including national issues. State referendums on abortion would be beneficial for an American democracy that suffers from a deficit of public trust. Americans tell sociologists that they do not believe the government cares about their interests, and they are deeply frustrated with the bias of the two main parties, which seem to be more interested in the struggle for power than in finding solutions to important issues. The referendums will give the American people back control, at least on this divisive issue, and help them move away from ideological extremes along a centrist path.



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