I don’t “get” liberalism. For the last 40 years, I thought I had a pretty good handle on the concept—in my high school yearbook, there’s even a photo of me holding up one end of a red-white-and-blue “Mondale-Ferraro” yard sign.
Not anymore.
Things got muddled when liberals—and others who support women’s reproductive rights—pushed back against the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and the overturning of Roe v. Wade and Planned Parenthood v. Casey not just with indignation and anger but also with public opinion polls.
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These snapshots of public opinion show us what we already know to be true: America is a pro-choice country, with a few caveats.
But pushing the will of the majority is not how liberalism is supposed to work.
It’s true that Americans don’t like abortion, and so we’re comfortable with restricting it six ways from Sunday. But, at the end of the day, the majority of Americans support a woman’s right to do as she sees fit with her body.
This was true before the Dobbs decision. In April, an ABC NEWS/Washington Post Poll found that 70 percent of Americans believed the decision should be left to the woman and her doctor and 58 percent believed abortion should be legal in all or most cases.
And it is true after the decision. A CBS News/You Gov poll taken late last week found that 59 percent of Americans disapproved of the ruling in the Dobbs case while only 41 percent of Americans approved. Those who disapproved included more than two-thirds of women.
It’s not the poll findings that bother me. I’m pro-choice, even though I support restrictions—including parental notification laws, waiting periods, even requirements that women must listen to the heartbeat of the fetus they’re about to abort. If you have a law intended to make getting an abortion as difficult as possible, while still preserving a woman’s right to get one, count me in.
However, what has gotten under my skin for the last several weeks—ever since Politico published a leaked draft of the Dobbs decision in May—is the fact that polls have become such a big part of the story. Liberals are basing too much of their counterattack against the Supreme Court on polling. They must figure, if the numbers are on their side, why not push them?
That makes some amount of sense—if you only care about winning the argument of the moment. Again, in this pro-choice country, all the polls say the same thing: the majority of Americans—55 percent to 65 percent—support a woman’s right to control her body, believe abortion should remain legal, and oppose the overturning of Roe. The polling is a slam dunk for the left.
But liberals are supposed to care about more than just making popular arguments, and ensuring that majorities get their way. Liberals are supposed to get worked up 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 made to feel uncomfortable by the local public school instituting a Christian prayer, the ACLU was there for you. That’s what liberals do.
But now, my former cohort is confusing the hell out of me. Liberals are rightly aghast at the Supreme Court's decision in Dobbs. They should be. Me too. Yet their strategy is obviously to try to paint the five conservative Supreme Court justices as far out of step with the wishes of the majority of the American people.
To which, the old liberal in me—the one back in high school and college—would have said: “Since when should the law and the Constitution—or at least, in this case, five justices’ interpretation of the founding document— be subject to public opinion polls?
Not in the Jim Crow south where, as recently as the 1960s, the majority—the bigoted white majority, to put a finer point on it—treated Black people as second-class citizens. And not in the Boston suburbs in the 1970s, when white parents—including many liberal Democrats—led a violent opposition to forced busing that was intended to give Black children a shot at a better education.
In both cases, guess who stood up to the angry white mobs? Federal judges. The beauty of their gig is that they don’t have to stand for election, and so they could afford to oppose the majority when the majority was wrong.
We’ve seen this drama play out time and time again throughout U.S. history. If the majority always got to call the shots—with no accommodation for the rights or welfare of those in the minority, and no regard for the law of the land as enshrined in the Constitution—there would have been no Civil Rights Movement. Mob rule, bolstered by violence, would have prevented it.
There also would have been no way to set things right in California, which is supposedly one of the most liberal states in the country but sometimes doesn’t act like it. In 1994, immigrant rights groups would have had no recourse to challenge Proposition 187, a ghastly ballot initiative approved by the majority of the state’s voters that sought to deny access to undocumented immigrants and their U.S.-born children to public education, social services and non-emergency health 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 which outlawed same-sex marriage and was approved by the majority of California voters. The Supreme Court eventually struck down the measure as unconstitutional.
So, please folks, let’s give the polls a rest. The five ultra-conservative justices on the Supreme Court didn’t put any stock in them, and the rest of us shouldn’t either.
Those Americans who are pro-choice should continue to fight—this time, in the state legislatures—to keep the country from going back in time. Our daughters should have, at the very least, the same reproductive rights that our mothers had. This battle isn’t over.
But the Constitution isn’t a numbers game or a popularity contest. It doesn’t care about 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 write it. And at so many points in our nation’s history, those in the federal judiciary have honored this tradition by defending the minority. And, in those cases, for that, liberals have been extremely grateful.
The pro-choice community would do well to remember that.
