The Supreme Court Just Rolled Democracy Back. You Can Measure How Much.

Jacquelyn Martin/AP Photo
·5 min read

The Supreme Court’s ruling last Friday to overturn Roe v. Wade will have immense consequences for the lives and healthcare of Americans. But if you’ve followed the shifts in how American democracy works over the past few decades, the decision also signals another big wave coming for the nation: It’s likely to turbocharge the trend toward greater polarization in state policies, with significant consequences for American democracy.

The Supreme Court on Friday pushed authority over one of the most controversial national issues from Washington back down to state government, a place where more and more of America’s contentious issues have been landing.

For the past 30 years, Democrats and Republicans have been increasingly fighting their national battles through subnational institutions — state governments — because with such dysfunction in Washington, that's where they can make headway. State governments have become increasingly important policymakers, with liberal and conservative states implementing increasingly distinct policies.

One significant result is easy to see on maps: The United States is becoming more polarized, with a “red America” and “blue America” clearly emerging.

But my research also shows another, more worrisome dynamic beneath that split: This version of America is also becoming less democratic.

“Anti-democratic” is often in the eye of the beholder, a term used to label any outcome a critic happens to disagree with. But in political science, one important component of democracy is a measurable number: How many Americans are living under policies they believe in? In a working majoritarian democracy, the answer should be “most.” If citizens don’t like policies, they can, and should, be able to vote to change them.

With Roe v. Wade being overturned, however, we are heading into a world where that is no longer true.

After the Dobbs decision was first disclosed by POLITICO in May, I decided to look at how Americans view abortion, and how that lines up with their local policies. Following the polling data and analytical techniques of Devin Caughey and Chris Warshaw, I found that about 61 percent of Americans support continuing to make abortions legal. For context, the right to obtain a legal abortion is even more popular than same-sex marriage was when the Supreme Court struck down state bans on same-sex marriage in Obergefell v. Hodges in 2015.

In the wake of Dobbs v. Jackson, state governments are likely to now have the discretion to fully ban abortion, and many are poised to do so. Thirteen states had trigger laws in place to ban abortion if Roe was overturned, a handful of which have already gone into effect. According to the Guttmacher Institute, another 13 states are likely to severely limit the availability of legal abortions in the coming months.

As a result, many Americans will find themselves out of step with the new abortion bans in their state.

The easy, and positive, way to think about state-by-state differences like this is that conservatives get to live under conservative policies, while liberals can live under more progressive ones. In some cases, with abortion, this holds up: Majorities of voters in some conservative states have consistently opposed abortion rights. Some red states, such as Louisiana and Utah, will see their state policies come in line with anti-abortion majorities. Thus, in the language of political science, the Dobbs v. Jackson ruling could enhance political representation in those states.

But there are other states in which a clear majority of citizens favor abortion, but the legislature is likely to ban it. Citizens in in states with impending abortion bans, including Arizona, Georgia, Michigan, Wisconsin, and even Iowa, support abortion rights.

Notably, this imbalance only runs one direction: There are no states with where the citizenry supports an abortion ban but the state government does not.

My analysis of polling data suggests that after this decision, and after the laws it triggers, 14 million fewer Americans will live under their preferred abortion policy than they do now. While this Supreme Court decision is being framed as handing power back to voters, it is actually moving policy away from what voters want.

Democracy is, of course, more than just following the will of the majority. It also involves civil rights and liberties (including, potentially, reproductive rights). But on the basic question of whether the government is responsive to the people, the Dobbs v. Jackson ruling moves the country backward. Democratic representation, after Roe, will be degraded. America will be less of a democracy, at least in the way we understand that word.

How did we get here? One important reason is the weakening of democratic institutions in the states. State election maps are key. As my new book, “Laboratories against Democracy: How National Parties Transformed State Politics,” describes, gerrymandering makes it harder for majorities of voters to select a majority of state legislative seats. Republican state legislative majorities in states like Wisconsin, where partisan gerrymandering empowers conservative rural voters over more liberal urban voters, will be electorally insulated from a backlash to an abortion ban.

Gerrymandering makes it harder for majorities of voters to elect a majority of state legislative seats. In several purple states likely to ban abortion, gerrymandered legislative maps have bolstered Republicans’ state legislative majorities. In the 2018 election in Wisconsin, for instance, Democratic state legislative candidates won 190,000 more votes than Republican candidates, but Republicans won 63 of the 99 legislative seats. As a result, in states like Wisconsin, Florida and Missouri, an anti-abortion minority of voters can set the majority of the state legislature.

Gerrymandering also insulates state legislators from a backlash to state-level abortion bans: Partisan lawmakers occupy highly secure seats, rather than having to forge compromise positions that appeal to a majority of state residents.

As state governments start to play an increasingly influential role in the lives of Americans, this imbalance will become only more important, not just on abortion but on issues like taxes and state services, access to guns or organizing labor unions.

In the longer term, if reproductive rights follows the trend of previous controversial policies, many purple states might eventually fall into step with the views of voters in their states and liberalize their abortion laws. If pro-choice activists and voter majorities sufficiently mobilize, bans on abortion in these states could be short-lived. But those changes will be contentious, argumentative and messy—all to restore the basic shape of a majority-rule democracy.