Few recent decisions of the Supreme Court have received as much popular attention as Dobbs v. Jackson Women’s Health Organization. In this Essay, we focus on one important aspect of the Dobbs decision: its emphatic claim to be returning questions of abortion access to “the people” or to democracy. Dobbs’s invocation of democracy has obvious intuitive appeal, but it is a deeply problematic claim. It ignores systemic distortions in state legislatures caused by gerrymandering and other factors. And more specifically, in the abortion context, it overlooks the very old laws that predate Roe and Roe/Casey-era “messaging” bills never thought likely to go into effect—both of which Dobbs has revived across the country. These laws, which often instantiate draconian bans on abortion access, are dubious measures of contemporary public opinion, but they may end up remaining in effect for a long time because of what we call “burdens of inertia” and “blind spots” in state legislative processes. Given these intertwined dysfunctions, Dobbs is far from a pro-democratic decision. Such a claim would be more plausible if (a) issued in a context where the Court was also taking the sources of democratic dysfunction (such as partisan gerrymandering) seriously; and (b) issued in a way that showed sensitivity to the distortions in the democratic process surrounding abortion, many of which were caused by the Court’s own interventions. As well, since the dysfunctions identified on the abortion issue are difficult to eliminate, a decision that took democracy seriously may have required the Court to continue to oversee abortion regulation nationwide with a regime similar to its current approach in Casey or at the very least to issue a quite different remedy that delayed the effect of overruling Casey, or did so only prospectively, while making clear that existing laws inconsistent with Casey had no force or effect. The hollowness of the celebratory reference to democracy in Dobbs raises the question of whether it was sincere, or instead a cynical fig leaf that threatens to further erode the significance of U.S. democracy.
