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Reviews |  A radical idea for the post-roe era: democracy

This second option, referendums, is particularly appealing for an issue like abortion, as it boils down to fundamental questions about a community’s values ​​and is not overly technical. A public debate followed by an opportunity for voters to decide the issue directly would produce an outcome that reflects the dominant opinion of the community; those on the losing side may not like it, but they are less likely to question its legitimacy.

While some fear that referendums will polarize the electorate and lead to extreme results, this has not been the experience of other countries. This includes predominantly Catholic countries where voters have had to weigh church opposition to abortion against more secular concerns and values. It turns out that the controversial issues in which religion informs the opinions of many voters are in fact good disputes to be decided by referendum.

Ireland shows how it could be done. In 2016, parliament created a citizens’ assembly made up of 99 randomly selected citizens, chaired by a Supreme Court judge, to consider the issue of abortion. At the time, the deeply Catholic country banned abortion unless there was a serious risk to the woman’s life. The assembly heard expert advice from both sides and deliberated for several months before recommending a national vote on the issue. The parliament followed the advice and held a referendum in 2018, in which 66% of voters approved the constitutional amendment to allow abortion. While not everyone’s preferred outcome, the Irish people as a whole accepted the outcome as legitimate, and they settled a contentious issue in a civil manner.

Similarly, the predominantly Catholic Mediterranean micro-states of Gibraltar and San Marino recently held referendums on whether to legalize abortion. More than 60 percent of voters approved legalization in both countries.

One of the advantages of passing an abortion law by referendum is that it is a democratic process, and experience suggests that voters are more willing to accept public decisions if they are taken through the democratic process rather than the courts. The comparison between Italy and the United States is instructive. In the United States, abortion has been legalized by nine unelected Supreme Court justices who are not accountable to voters. The decision sparked a storm of controversy, led to the creation of interest groups entirely focused on overturning or sustaining the decision, and made abortion one of the most polarizing issues in politics. American, which it remains today. Italy, a predominantly Catholic country that even houses the Vatican, legalized abortion but did so democratically, with a national referendum in 1978. That basically settled the issue, and it didn’t become the problem. polarizing that he is in the United States.

Some fear that allowing voters to set an abortion policy could lead to extremism. But this is more likely to lead to moderation because the voters themselves are fundamentally centrist on the issue. While pro-choice and pro-life activists tend to hold extreme views – ban abortion under all circumstances or allow abortion under all circumstances – polls suggest that most Americans reject both extremes. Large majorities tell pollsters they would allow abortion to protect the life of the mother and in cases of rape or incest. Large majorities would also prohibit it in certain circumstances, such as the choice of the sex of the child. Most Americans prefer a policy somewhere between the extremes, and if they vote in a referendum on this issue, there is good reason to believe that they will chart a middle course.

An illustration of the limited appeal of extreme views comes from Mississippi Initiative 26 in 2011 and North Dakota Measure 1 in 2014. Both measures proposed to define life as beginning at the time of conception. Since this would make abortion equivalent to murder, the effect would have been to make abortion illegal under all circumstances. Mississippi and North Dakota are conservative states, but voters rejected both proposals by a margin of over 15%.

If the abortion policy is set by elected officials, on the other hand, it is easier to imagine the emergence of extremist policies. Parties are now highly polarized and controlled by their most committed and ideological members. Once a party gains power, its instinct is not to rule in the middle, but to appease its base – not a recipe for compromise policies.

Some might wonder if we can trust voters to make important political decisions. It should be remembered that Americans have a long history of voting on important public policy issues at the national and local levels, and a large majority of voters approve of this move. In all but one state, voters must approve every constitutional amendment, and some states require voter approval for bond issues, tax increases, and various other matters. Most voting measures are proposed by the legislature, but 24 states allow citizens to also propose laws using the so-called initiative process, and 82% of large cities allow initiatives. Initiatives and referendums have been around for over a century, and history shows that voters mostly make reasonable choices, at least no less reasonable than decisions made by lawmakers.

In a poll taken earlier this year, 73% of Americans said it would be a good idea to use referendums to determine important public policies, including national issues. State referendums on abortion would be beneficial for the American democracy, which suffers from a deficit of public confidence. Americans tell pollsters they don’t believe the government cares about their interests and that they are deeply frustrated with the partisanship of the two main parties, who seem more interested in fighting for power than finding solutions to important issues. Referendums would allow the American people to regain control, at least on this divisive issue, and help them move away from the ideological extremes of a centrist path.


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