The Biden Administration Should Consult the People on Abortion
It won't make law but it might change the political dynamics
What to do now about abortion? I’m Canadian and the most pithy answer to that came from former Canadian Prime Minister Pierre Trudeau when he was Justice Minister, working on criminal law reform. An aide rushed into Trudeau’s office and asked frantically, “Minister, what should we do about the abortion bill?” Trudeau responded: “Pay it!”
No such witty response is likely from Joe Biden. There are very few stances that unite the Democratic Party and one of them is support for Roe v. Wade, a decision recognizing the fundamental right of choice as a constitutional imperative. Now, what has been feared for a long time seems about to happen: a Supreme Court where GOP-appointed ideologues hold the balance of votes will overturn Roe.
Roe never did result in equal and unobstructed access to abortion across America. For one thing one would need universal healthcare and coverage of abortion under it, to realize that vision. On the contrary, in many places the forces of darkness succeeded in getting state governments to undermine Roe with new obstacles and restrictions, violating the spirit if not the letter of the decision.
But Roe represented a moral equilbrium even if it was far from producing a just social reality. If the Democratic Party can’t even find a way to preserve that equilbrium, a rare case where the party itself is united behind something, then what hope does it have of being the future governing party of an America ailing from extreme divisions?
The options of expanding the court and federal legislation to protect abortion rights are already on the table. Both are good ideas. But they require greater popular energy to push them through the lawmaking process.
Such energy could be unleased through a national referendum. Poll after poll tells us that the majority of Americans back the right to choose along the lines of Roe. A federal referendum would be purely consultative as there is no basis for decisionmaking by referendum in the US federal constitution. In Ireland, a referendum allowed the people to prevail over a traditionally powerful Catholic Church. In the US it would establish the democratic legitimacy of preserving the moral equilbrium of Roe. It would make it harder for politicans to go backward and for any holdouts in the Democratic Party for sure (Joe Manchin is one according to AOC) to block federal legislation protecting abortion rights, for example.
Wouldn’t Biden need Congress on side merely to go forward with such a vote? I leave the answer to that question to my constitutional law colleagues, real experts. But since a popular consultation would not have direct legal effects, it seems a matter of common sense that the federal government should be able to survey citizens from time to time, asking their opinion. It could, in theory, be done through the United States Postal Service or through various electronic means that the federal government uses to interact with citizens (as it does with Americans as taxpayers, social security recipients, Medicare and Medicaid beneficiaries etc.). The Biden Administration would have control over the question. Perhaps there would be two questions, one concerning abortion rights and another on expansion of the Supreme Court.
But even if the Administration believed it had no legal choice to proceed through Congress to organize a consultative referendum, not only Democratic legislators but those on the right who claim to be populists would find it hard to explain why, in fact, they fear the real voice of the people.