Melissa Murray and Kate Shaw: What Happened to the Part of Dobbs About Letting the People Decide About Abortion Rights?

Murray and Shaw NYT Oped:

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court justified its decision overruling Roe with an appeal to democracy. In the Dobbs majority opinion, Justice Samuel Alito wrote that the conclusion in Roe that the Constitution protected the right to abortion had stripped the American people of “the power to address a question of profound moral and social importance.” On this logic, the Dobbs decision merely corrected an egregious error, returning the power to regulate abortion “to the people and their elected representatives.”

Despite this paean to democracy, in the past year, elected officials in a number of states have demonstrated a disturbing hostility toward democracy when it is used to protect abortion rights and reproductive freedom. In that time, more than a dozen states have banned abortion, through the enforcement of pre-Roe abortion bans or the enactment of new ones. In other states, abortion access has been severely limited.

But one important countervailing trend in the post-Dobbs era has been the use of direct democracy to protect abortion rights. The mechanisms of direct democracy — referendums, initiatives, ballot questions and the like — allow voters to register their preferences directly, bypassing elected officials and other intermediaries.

These vehicles have proved remarkably effective. Since the fall of Roe, every time Americans have gone to the polls to vote directly on matters of abortion, they have voted to protect reproductive rights, expanding protections for abortion access and rejecting efforts to roll back access to abortion.

Perhaps that is why many Republican officials — many who once celebrated Dobbs and the prospect of democratic deliberation — are now laboring mightily to restrict access to direct democracy.

Supporters of reproductive freedom across the country must continue to flock to the polls to defeat efforts to throttle democratic processes where they are being used to limit democratic deliberation on abortion.

Nowhere is this imperative more pressing than in Ohio, where one of the most brazen attempts of this kind is underway. There, elected officials are seeking to erect obstacles to amending the state Constitution, almost certainly to prevent Ohio voters from enshrining reproductive freedom in that state’s charter.

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