In his leaked draft Supreme Court opinion, Justice Samuel Alito argues that overturning Roe v. Wade would allow “women on both sides of the abortion issue to seek to affect the legislative process.”
If women in a post-Roe era don’t like state laws that restrict abortion access, or laws that preserve the right to have an abortion, Alito envisions a world in which they can step up and change them. Women can vote, he pointed out, and often do so in higher numbers than men. They can lobby and run for office.
But advocates for voting access and civil rights say that Alito’s depiction does not account for the parts of the country, particularly in the South, where laws make it harder for the poor and voters of color to cast their ballots, and where racially polarized voting can make it more difficult for abortion rights candidates to gain ground.
Southern states — including Mississippi, Georgia and Texas — that are poised to significantly limit or outlaw abortion with few exceptions are also some of the toughest places to participate in elections, or have recently passed voting restrictions, according to researchers, civil rights advocates and a review of federal lawsuits.
“Justice Alito has a ‘Schoolhouse Rock’ version of how democracy is supposed to work,” said Michael Li, senior counsel at the Brennan Center for Justice’s Democracy Program at New York University, which supports voting rights. “But when you go to the states that’s not actually how democracy works for a whole host of reasons, whether it’s gerrymandering or laws that make it harder to vote.”
The idea that state legislators are voted out if they do something their constituents don’t like oversimplifies the ways political mechanisms, like gerrymandering, can shield elected officials from blowback, Li said.
Even if 50 percent of a state’s voters believe abortion should be legal, that isn’t always reflected in the legislature, where elected officials have drawn their own districts in ways that might skew representation away from the majority of voters.
Abortion rights supporters are organizing to fight for access to reproductive health care in the upcoming midterms, though some say that the proliferation of voter restriction laws — both past and recent — means they also need to fight to remove hurdles to voting.
“It’s really important to recognize that the same people that are disproportionately affected by legislation that bans abortion in various ways, or the outright overturning of Roe, they’re the very same people who are disproportionately, or actually intentionally, targeted by voter suppression laws,” said Nita Chaudhary, chief of program for MoveOn, a progressive advocacy group.
“It is women of color, women with less resources, who stand to lose the most and are most impacted. It has been a decades-long strategy on the part of the right to disempower and disenfranchise these very populations. This is what they’re trying to do.”
Black Americans are more likely than non-Black Americans to say that abortion is “morally acceptable,” according to a Gallup Poll conducted from 2017 to 2020. And 32 percent of Black Americans agreed that abortion should be “legal under any circumstance,” compared with 27 percent of non-Black Americans who said the same, the poll found.
Many abortion rights opponents welcome returning the issue to the states.
The Susan B. Anthony List, which endorses legislators in favor of restricting abortion rights, argued in an amicus brief in the Supreme Court case Dobbs v. Jackson Women’s Health Organization, which is the focus of Alito’s leaked draft, that the improved representation of women in political office since 1973 was one reason for the high court to give states the final say.
“The outcome of Roe v. Wade being overturned, if indeed it is, will simply be to return this back to the American people to decide through their elected officials,” said Mallory Carroll, a spokeswoman for the group.
Carroll acknowledged that some states will strengthen access to abortion services, as has happened in California and New York.
“That is certainly a policy outcome that we don’t want, but it will be balanced by the ability of what we want, which is to pass as many laws, ambitious laws pro-life laws that save as many lives as possible,” she said.
In the draft opinion, Alito cites the voter turnout rates of women in Mississippi, whose 15-week abortion limit is at the center of the Supreme Court case, to bolster his position that “women are not without electoral or political power.” In the 2020 general election, women made up about 52 percent of the state’s population but accounted for 56 percent of those who cast ballots.
But Nsombi Lambright-Haynes, the executive director of One Voice, a voting rights group, says robust participation doesn’t erase the hurdles she saw in 2020 — including restrictions on voter registration, polling site moves without adequate warning and a lack of widespread access to early voting. For Lambright-Haynes, Alito’s assertion places too much faith in an electoral process fraught with roadblocks.
“That’s really not fair to women and families in general,” she said. “Women turn out exceptionally well in Mississippi to the polling places, despite a number of barriers. But having said that, there are still a number of barriers that prevent even better participation by women and people in general in Mississippi.”
Mississippi, which was the last state to adopt an equal pay law, and where the homes of civil rights leaders were once firebombed, also has one of the nation’s highest Black voter participation rates. In the fall of 2020, 73 percent of the state’s Black voter population cast ballots, compared with 69 percent of white voters.
And yet voting rights leaders say relics of the state’s Jim Crow history remain. A holdover from the state’s 1890 Constitution, which stripped voting rights from people convicted of certain felonies, such as forgery and perjury, is estimated to have kept tens of thousands of Mississippians, almost 60 percent of them Black, from voting, according to a study by The Sentencing Project, an advocacy group that promotes criminal justice reform.
Attorneys from the Mississippi Center for Justice have filed a federal lawsuit seeking to strike that part of the provision. As of now, the only way to restore a person’s voting rights in Mississippi is for two-thirds of the House and Senate to vote in support and the governor to sign off. In some years, only a handful of these bills pass.
“Those folks are also people who have or should be allowed to have political insight, or political say-so, in what’s happening around them,” said Hannah Williams, a policy analyst with Mississippi Votes, which focuses on improving civic engagement among younger residents.
Even when women are able to vote, there’s no guarantee that the issues they want to see advanced will be prioritized by their elected officials, Williams said. And that may be true for abortion.
In an NBC News poll conducted this month, 6 out of 10 Americans said that abortion should either be “always legal” or “legal most of the time.” And almost two-thirds of respondents said Roe should not be overturned.
In Mississippi, where Republicans dominate all levels of government and set policy priorities, political observers have pointed out that party affiliation often splits along racial lines. Seventy-six percent of Black adults in the state were likely to lean Democrat, while 65 percent of white adults were likely to favor Republicans, according to a poll by the Pew Research Center. That pattern gives conservatives an advantage, as Black residents account for less than 40 percent of registered voters in the state.
In Georgia and Texas, which are also prepared to gut abortion rights if Roe falls, residents backing abortion rights candidates may face their own setbacks. A law passed in Georgia last year, which was challenged by the Justice Department, gives voters less time to request absentee ballots, requires voters without driver’s licenses to photocopy another form of ID to obtain an absentee ballot, and makes it illegal for churches and civic groups to provide water or meals to voters waiting in long lines.
And in Texas, the Justice Department has challenged the state’s redistricting plans. Although new congressional seats were added in Texas after the 2020 census, in part due to the state’s growing population, which is increasingly diverse, no additional majority-minority districts were added to reflect those changes, advocates say.
That “deliberately minimizes the voting strength of minority communities,” the Justice Department said in a news release describing the complaint.
Li, the attorney with the Brennan Center, noted that the impact of redistricting may seem obscure at first.
“Everybody gets the 95-year-old woman who can’t vote,” he said. “Gerrymandering, you don’t see the lines when you’re driving around. It’s hard to visualize.”
But the way a political map is drawn does carry consequences. Li explained that redistricting can mean the difference between a heavily Republican legislature having enough votes to override a Democratic governor’s veto or not — a scenario that could arise in Georgia if Stacey Abrams is elected governor.
“Justice Alito is assuming that we have a political system that is responsive to public sentiment,” Li said. “And the reality is that in a lot of ways, the system is designed not to be responsive to public sentiment.”