Liberals must drop the “popularity” argument about abortion rights

I don’t “understand” liberalism. For the past 40 years, I’ve thought I had a pretty good handle on the concept—there’s even a photo of me in my high school yearbook holding up one end of a red, white, and blue “Mondale Ferraro” advertising sign.

No longer.

Things got mixed up when liberals – and others who support women’s reproductive rights – challenged the Supreme Court decision Dobbs v. Jackson Women’s Health Organization and the overturning of Roe v. calf and Planned Parenthood vs. Casey not only with indignation and anger, but also with opinion polls.

These snapshots of public opinion tell us what we already know to be true: America is a pro-choice country, with some caveats.

But advancing the will of the majority is not how liberalism should work.

It’s true that Americans don’t like abortions, and that’s why we’re comfortable restricting them in six ways, starting Sunday. But at the end of the day, the majority of Americans support a woman’s right to do with her body as she sees fit.

This was before Dobbs Decision. In April, an ABC NEWS/Washington Post poll found that 70 percent of Americans believed the choice should be left to the woman and her doctor, and 58 percent believed abortion should be legal in all or most cases.

And it’s true after the decision. A CBS News/You Gov poll conducted late last week found that 59 percent of Americans disapproved of the US federal court’s ruling Dobbs Fall, while only 41 percent of Americans agreed. More than two-thirds of women were among those who disagreed.

It’s not the poll results that bother me. I’m pro-choice, although I support restrictions — including parental notification laws, waiting times, even requiring women to listen to the heartbeat of the fetus they’re trying to abort. If you have a law designed to make abortion as difficult as possible while preserving a woman’s right to an abortion, count me among them.

“The Constitution is not a numbers game or a popularity contest.”

Which, however, has gotten under my skin for the past few weeks — ever since Politico released a leaked draft of the Dobbs Decision in May – is the fact that polls have become such a big part of history. Liberals are basing their counterattack on the Supreme Court too heavily on polls. They need to do the math, if the numbers are on their side why not push them?

That makes some sense — if you’re just trying to win the argument of the moment. Even in this pro-choice country, all polls say the same thing: The majority of Americans — 55 percent versus 65 percent — support a woman’s right to control her body, believe abortion should remain legal, and oppose it abolition of abortion roe. The election is a slam dunk for the left.

But liberals should be concerned with more than making popular arguments and ensuring majorities prevail. Liberals are supposed to get excited about defending the minority – and the law – against the tyranny of the majority. These are the principles on which liberalism was founded.

In fact, the American Civil Liberties Union built its reputation by fighting the unpopular battles. If you were a Muslim parent living in the Midwest and your child was uncomfortable because the local public school instituted Christian prayer, the ACLU has you covered. That’s what liberals do.

But now my former cohort confuses me to death. Liberals are rightly appalled by the Supreme Court’s decision Dobbs. They should. I also. Their strategy, however, appears to be to portray the five conservative Supreme Court justices as deviating far from the wishes of the majority of the American people.

To which the old liberal in me—then in high school and college—would have said, “Since when was the law and the Constitution—or at least the interpretation of the founding document by five judges, in this case—been the subject of public opinion polls?

Not in the Jim Crow South, where as late as the 1960s the majority – the bigoted white majority, to be more precise – treated blacks as second-class citizens. And not in the 1970s in the Boston suburbs, when white parents — including many Liberal Democrats — led violent opposition to compulsory buses designed to give black children a chance at a better education.

Guess who fought back against the angry white mobs in both cases? federal judge. The beauty of their appearance is that they do not have to stand for election and can therefore afford to defy the majority when the majority is wrong.

We have witnessed this drama time and time again throughout US history. If the majority always had the say—with no regard for the rights or well-being of the minority, and regardless of the country’s constitutional law—there would have been no civil rights movement. Mob rule reinforced by violence would have prevented this.

Even in California, which is said to be one of the most liberal states in the country but sometimes doesn’t behave as such, there would have been no remedy. In 1994, immigrant rights groups would have had no way to challenge Proposition 187, a ghastly ballot initiative passed by a majority of the state’s voters that sought to deny undocumented immigrants and their US-born children access to public education, social services, and more to refuse – emergency care. The measure was struck down by a federal judge as unconstitutional.

In 2008, the LGBTQ community would have no way of challenging Proposition 8, a bigoted ballot measure that banned same-sex marriage and was adopted by a majority of California voters. The Supreme Court eventually dismissed the measure as unconstitutional.

“Liberals should be concerned with more than making popular arguments and ensuring majorities prevail.”

So please folks, let’s give the polls a break. The five ultra-conservative Supreme Court justices didn’t care about that, and neither should the rest of us.

Those pro-choice Americans should keep fighting — this time in the state legislatures — to keep the country from going backwards in time. Our daughters should at least have the same reproductive rights as our mothers. This fight is not over yet.

But the Constitution is not a numbers game or a popularity contest. It doesn’t matter what the majority wants. It exists to protect those in the minority. The people who make up the majority can usually protect themselves.

Liberals know this story. In fact, they helped with the writing. And at so many points in our country’s history, the federal judiciary has honored this tradition by defending the minority. And in these cases, liberals have been extremely grateful.

The pro choice community would do well to remember this. Liberals must drop the “popularity” argument about abortion rights


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