The Counter-Majoritarian Difficulties of Dobbs v. Jackson Women’s Health: Why Overruling Roe Will Diminish American Democracy

Abstract This essay claims that overruling Roe will mean more democratic contestation rely on the obviously (in the American context) false assumption that other political institutions are “majoritarian” alternatives to “counter-majoritarian” courts. But the counter-majoritarian aspects of American constitutionalism and politics (including gerrymandering, malapportionment, and other factors that generally lead to the massive over-representation of rural white voters) will generally produce abortion policy outcomes with far less popular support than Roe itself and will also insulate even unpopular abortion restrictions and bans from effective Democratic response. And, of course, the anti-Roe majority on the Court itself reflects national political institutions that do not reflect national majorities. And finally, overruling Roe will lead to an increase rather than a diminution of arbitrary hierarchy and domination while undermining the equal citizenship on which democracy is predicated.