But there looms another issue, one grounded in the fact that Dobbs does not make abortion illegal. Dobbs merely returns to state governments the authority to restrict legal access to abortion. State governments are not obliged to so restrict. If the majority public opinion to which the Post refers can be interpreted, as seems reasonable, as opposition to at least some restrictions on abortion (rather than as opposition to some train of lawyerly reasoning), then it seems that the impact of the Dobbs ruling on policy will be minimal. State legislatures—which unequivocally are political institutions—will not restrict access to abortion.
Obviously, though, this last conclusion is too simplistic. While at least some restrictions on abortion might indeed be opposed by a majority of Americans as a whole, no state legislature is elected by Americans as a whole; each state legislature is elected only by citizens of that state. Even if a majority of Americans oppose restrictions on abortion, a majority of the citizens of one or more individual states—for example, Mississippi (the state that gave rise to the Dobbs litigation)—nevertheless might support such restrictions and vote accordingly.
This reality presumably plays a key role for the pundits and politicians who insist on the significance of the fact that at least some government-created restrictions on abortion are opposed by a majority of Americans. The presumption, apparently, is that if a majority of Americans support legal access to abortion, then this majoritarian preference should trump any contrary preference of a majority of voters at the state level.
Yet why? A foundational component of the constitutional structure of government in the United States is federalism. While reasonable people can, and do, debate over the proper allocation of power between the national government and the various state governments, few people not on the far Progressive left believe that state governments are, or should be, mere administrative units beholden to Washington. According both to custom and to the Constitution—its structure and the 10th amendment—each state government retains a vast scope to exercise police powers, as well as to choose the details of this exercise. States do so largely independently of each other and of the national government. Of course, majoritarian elections in each state determine which, and how, police powers are exercised. Why should, in any state, the preference of a majority of Americans prevail on the question of abortion over the preference of a majority of that state’s voters?
Even if, contrary to fact, we Americans were in widespread agreement that the best form of government is simple and unconstrained majority rule, this agreement would not settle the question of the level at which majorities should rule. If someone insists that abortion policy should be set nationally and determined by the wishes of a majority of American voters as a whole, that person is then an opponent of majority rule from the perspective of majoritarians who believe that the relevant polity for determining abortion policy consists of citizens of each state, or perhaps of citizens of each county, city, or town.
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