Justice Ruth Bader Ginsburg’s passing means the ideological balance of the Supreme Court is now at stake. Should the Republican-controlled Senate replace Ginsburg with a justice chosen by Donald Trump—as Sen. Mitch McConnell has said he’ll do, contradicting his own reasoning for why he refused to hold hearings for Merrick Garland—conservatives would gain a sixth seat. One of the most certain consequences would be the likely destruction of abortion rights and access in America as we know them.
Since Trump’s election, the conservatives on the court have already begun to erode judicial precedent protecting abortion rights. In the most recent abortion access case to appear before the court, June Medical Services v. Russo, reproductive rights advocates barely squeaked by with a win: Chief Justice John Roberts sided with the liberals, but only narrowly, in a concurrence that chipped away at the heightened standard for abortion restrictions set by the court’s previous decision in Whole Woman’s Health v. Hellerstedt. Trump’s likely choice for Ginsburg’s replacement, federal Judge Amy Coney Barrett, appears to be even more overtly hostile to abortion rights than Trump’s previous Supreme Court picks.
A 6–3 majority on the Supreme Court would likely repeal or dramatically undercut Roe v. Wade, allowing the government to consign millions of women to pregnancy and childbirth against their will. What’s even more despicable than that? Americans don’t even want this.
Abortion rights in the U.S. are as popular now as they’ve ever been. Last year, nearly every major poll on abortion rights found support for Roe v. Wade at record highs. A June CBS poll found that nearly two-thirds of Americans want to keep Roe v. Wade’s protections in place, while less than one-third want to overturn them. It wasn’t just Democrats: A strong majority of independents and a plurality of Republicans said they wanted to keep Roe v. Wade around, too. As NBC News has tracked views on abortion over the past decade, support for legal abortion has risen among most measurable demographics: Women, men, Democrats, and Republicans have all grown more supportive of abortion rights, a unified trend in opinion rarely seen on such a purportedly controversial topic.
At the same time, according to an ABC/Washington Post poll, the proportion of Americans who want to make abortion illegal “in all or most cases” has fallen nearly 10 points in the past decade. Voters are clear on where they stand: In 2019, the Pew Research Center found that, by a margin of 10 points, Americans prefer the Democratic Party’s stance on abortion to the GOP’s. Independents support Democrats over Republicans on abortion by a similar margin, according to a PBS NewsHour/NPR/Marist poll. And far more Americans are worried about states making it harder to get an abortion than are worried about states making it easier.
In a better society, a person’s right to decide whether and when to bear children would be wholly safeguarded on human rights grounds. She would be able to make her own decisions about her health care and her body, no matter who was president, where in the country she lived, or what the majority of her neighbors thought. In this country, though, the matter of whether a woman can be forced by the government to bear unwanted children is decided by the nine people on the Supreme Court, and the nine people seated on the Supreme Court are determined by the Senate, an institution that structurally favors the will of the minority.
Several Supreme Court justices have been openly itching to roll back women’s rights since they gained an ideological majority. The fact that they may do so at a time when support for abortion rights is at an all-time high does not just add insult to injury. It is a reminder that women will suffer due to the choices of a man elected by a minority of voters, a Senate that represents a minority of voters, and a Supreme Court that is not beholden to voters at all. The court’s dismantling of Roe v. Wade would simply be another catastrophic failure of democracy.