In June 2022, the Supreme Court of the United States passed down its opinion on the landmark case of Dobbs v. Jackson Women’s Health (2022). In a 5-4 ruling, the court held that there was no constitutional right to abortion in the United States, overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). For many women and people with the capacity for pregnancy in the United States, these rulings are devastating, and have set the United States back in its fight for sex equality. What is unsettling about the ruling in Dobbs is that it acts against a popular opinion in the United States, as more and more people are in favor of the established precedent that there is a constitutional right to abortion established by Roe. Additionally, four of the five justices that voted to overturn Roe were appointed by Presidents who did not win the popular vote in their respective elections. How is it possible that a long established right to bodily autonomy could be taken away with an opinion coming from the minority? It is possible because of the bizarre and unique way the United States elects the President, who alone has the power to appoint justices to the Supreme Court.

The method for which the U.S. elects its President is called the Electoral College, a byzantine system by which the President is elected by the states rather than the people. The framers of the Constitution feared a system where the President was elected directly by the people, so when Americans vote in Presidential elections, they are merely voting for which candidate they want their state to vote for. Additionally, each state is allotted a certain number of votes, and once a candidate wins a plurality of the popular votes, that candidate wins all the electoral votes from that state. The number of the votes each state receives is based on that state’s number of Congressional representatives and senators. What this means is that some states with small populations, who would otherwise have only one vote, are over-represented, while larger states are under-represented. There is a scenario in which a Presidential candidate could win an election with only twenty two percent of the popular vote. While this is an extreme example, five Presidents have been elected with a minority of the popular vote, two of which have appointed justices to the Court that overturned Roe and Casey. 

The Court’s previous rulings in Roe established the first Constitutional right to an abortion during the first trimester of a pregnancy. This right was based on the previously established Right of Privacy established in Griswold v. Connecticut (1967), which made it legal for married couples to use contraceptives. Griswold’s ruling was made possible by the Supreme Court using a penumbra of Constitutional amendments to establish this right, since the right to privacy is not in the text of the Constitution. The right to an abortion was reaffirmed in Casey, which changed the standards for how abortions can be regulated in the U.S. The Court ruled that the state could not place an “undue burden” in the path of a woman seeking an abortion, and while the state has an interest in protecting the potential life of the fetus, it also has an interest protecting the health of the mother. 

Dobbs overturns all of this, stating that Roe was “egregiously wrong,” and leaves abortion to the states to decide. The majority ruling seems to be based on little more than the individual preferences of the justices, as the majority opinion states that the right to privacy with regard to same sex marriage, contraception, and same sex intimacy is still constitutional. Additionally, the majority cites the fact that the right to abortion is not only not in the text of the Constitution, but is not deeply rooted in the history and traditions of the country. The simple counter argument to this is that Roe is deeply rooted in tradition, as it has been legal precedent in the U.S. for almost fifty years. Additionally, if the right to privacy with regard to abortion is to be taken away, it makes little sense that the rest of the rights established by privacy are still constitutional; a concurring opinion stated that the court may review those cases to decide whether they are still legal. 

The process by which the Supreme Court destroyed abortion rights in the United States byzantine and broken. The electoral college was designed so the people would not have as much of a say in the democratic process. According to the Pew Research Center, 61% of Americans are pro-choice, and somehow, five people have unilaterally removed that right. The principle that the U.S. judiciary will be free of democratic influence is, on the surface, a fair way to regulate the Constitution. However, when the person responsible for choosing who serves on the Court is elected without the consent of the people, and those justices remove a fundamental right that the people have a consensus on, that system cannot be supported. The United States must move to eliminate the electoral college and replace it with a national popular vote (or find a way to subvert it, possibly with the National Popular Vote Interstate Compact), and must pass federal protections of abortion rights to keep the right to privacy intact.