Let the People Decide Women’s Rights

Ed Minnock

July 8, 2025

The 1973 Supreme Court that ruled 7 to 2 that the right to privacy implied in the 14^th Amendment protected abortion as a fundamental right. The ruling stated that after fetal viability, outright bans on abortion were permitted if they contained exceptions to preserve the life and health of women.[i]

On June 24, 2022, the Supreme Court used its ruling in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade.[ii] The court ruled that the 14th Amendment does not grant women a right to privacy.[iii]

Obviously, the 14^th Amendment didn’t change. Also, the party that nominated the majority of Supreme Court justices didn’t change. The 1973 Supreme Court contained six Justices nominated by Republican Presidents. Five of the six voted in favor of women’s reproductive rights, and the decision was written by a Republican-appointed Justice. The 2022 Supreme Court that overturned Roe also contained six Justices nominated by Republican Presidents. All six voted to overturn Roe.

Neither the Constitution nor the Amendments make any explicit statements regarding women’s right to privacy, women’s reproductive rights, or abortion.

Citizens are More Accepting of Policy Decisions made by Voters

Few issues are as divisive and politically polarizing in America as women’s right to choose. A primary reason is that courts, not elected representatives or voters, have made the key decisions. In Italy and Ireland, two primarily catholic countries that allow referendums, women have been granted the right to choose without divisiveness and violence.[iv] (A referendum is a proposal that originates from the government and is voted on by voters.)

In 2018, Ireland held a referendum to decide whether to repeal its near-total ban on abortion. The ban was repealed by a vote of 66.4 percent to 33.6 percent.[v] In 1978, Italy’s parliament passed a law legalizing abortion, similar to Roe v. Wade. Italy’s far-right groups attempted to repeal the law, while far-left groups sought to expand it, both through national referendums. Voters overwhelmingly rejected both efforts, allowing the law to stand and effectively settling the issue.[vi] 

However, in Wichita, Kansas, an abortion clinic was attacked in 1986 with a pipe bomb. In 1993, Dr. George Tiller, a well-known abortion doctor, was shot and injured. In 2009, Dr. Tiller was shot and killed at his Wichita church. After the Dobbs ruling overturned Roe v. Wade, Kansas voters rejected a proposed state constitutional amendment that would have specified that the right to terminate a pregnancy is not protected. This time, citizens accepted the results because voters decided. Most states that outlaw women’s reproductive rights have not put the issue to a vote.[vii] These are examples of citizens being more accepting of policy decisions made by voters.

Let Voters Decide Women’s Reproductive Rights

Because national votes carry more credibility with citizens, most democracies use them to settle their most important issues. Twenty-six of the twenty-seven countries in the European Union have held national votes on policy. The only country that hasn’t is Germany, which may be because of the stain of the referendums Hitler used to secure his dictatorship. However, Hitler’s referendums were not free and fair elections. Referendums during the Nazi regime were ripe with voter intimidation and fraud.[viii]

In America, holding binding national votes on policy would require an Amendment because the Constitution does not grant voters that right. However, amending the Constitution is nearly impossible because it requires 290 votes of the 435 members of the House of Representatives, sixty-seven votes of the 100 members of the Senate, plus thousands of votes in state legislatures to achieve the required thirty-eight-state ratification. A study of thirty-two national constitutions found that the U.S. Constitution is the most difficult to amend.[ix]

Congress could, however, schedule advisory referendums. Congress and the President are not legally bound to implement advisory referendums. Still, Congress and/or the President could commit to passing bills that implement the will of the people if they choose. (British Prime Minister David Cameron held an advisory referendum on EU membership, called Brexit, and he vowed to carry out the will of the people, which the UK government did. The Brexit advisory referendum required a simple majority to pass.)[x] 

To ensure overwhelming voter support, this article recommends that a two-thirds supermajority is needed to pass an advisory referendum. (Two-thirds is chosen because that is what amendments require of both houses of Congress.) Passing the two-thirds threshold is important because it will be used to justify the new rules described below.

This article recommends that once in control of Congress, Democrats commit to passing a bill that schedules an advisory referendum to vote on the basic elements of Roe v. Wade. Democrats should not have trouble passing such a bill in the House of Representatives because a simple majority is required. However, according to Senate rules, Senators who oppose a bill can extend debate by using a filibuster and effectively block a bill. Sixty votes are required to end a filibuster. And because there is a good chance that Senate Republicans would filibuster bills that schedule advisory referendums, this book recommends that Senate Democrats establish a new rule: bills scheduling advisory referendums are not subject to Senate filibusters.

The president would then have three choices. He can sign the bill into law, veto it, or do nothing. If he does nothing, the bill becomes law after ten days, excluding Sundays, assuming Congress is in session.[xi] If the President threatens to veto the bill, Democrats could remind him that a national vote on women’s reproductive rights would clear up any confusion regarding where voters stand on the issue. If the President vetoes the bill, Democrats can promise to pass a law guaranteeing women’s reproductive rights again when a Democrat sits in the Oval Office.

In a 2023 poll, 63 percent of Americans believed Roe should not have been overturned. To strengthen the referendum, Democrats could add the right to purchase contraceptives and abortion pills because those rights are also under threat.

If the bill scheduling the referendum becomes law and the advisory referendum passes the two-thirds threshold, Democrats should draft a bill that restores women’s reproductive rights and secures women’s right to purchase contraceptives and abortion pills. Democrats should reach across the aisle and invite Republicans to vote for the bill because it carries out the will of the people. Again, Democrats should not have trouble passing such a bill in the House of Representatives because a simple majority is required. However, because there is a good chance that Senate Republicans would filibuster this bill, this book recommends that Senate Democrats establish a second new rule: bills that have received two-thirds of the vote in an advisory referendum are not subjected to Senate filibusters.

Once passed, pressure would be on President Trump to sign the bill. If he vetoes it, he exposes himself for opposing legislation that voters overwhelmingly support, and the Democrats could promise to pass the legislation again when a Democrat sits in the Oval Office. Once signed into law, the Supreme Court would most likely let it stand because Congress has passed several laws that grant rights to citizens that the Supreme Court has not overturned, such as the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Pregnancy Discrimination Act.[xii]

[i]       “Roe v. Wade and Supreme Court Abortion Cases,” Brennan Center for Justice, see note 18.

[ii]      “Roe v. Wade and Supreme Court Abortion Cases,” Brennan Center for Justice, September 28, 2022, https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases#:~:text=justices'%20abortion%20views-,Is%20abortion%20a%20constitutional%20right%3F,a%20constitutional%20right%20to%20abortion.

[iii]     “Roe v. Wade and Supreme Court Abortion Cases,” Brennan Center for Justice, see note 18.

[iv]     John G. Matsusaka, Let the People Rule: How Direct Democracy Can Meet the Populist Challenge. (Princeton University Press, 2020).

[v]      Shane Harrison, “Irish Abortion Referendum: Ireland Overturns Abortion Ban,” BBC, May 26, 2018, https://www.bbc.com/news/world-europe-44256152.

[vi]     Dans and Groves, Project 2025, see note 25.

[vii]    Ibid.

[viii]   Dans and Groves, Project 2025, see note 25.

[ix]      Richard Alber, “The World’s Most Difficult Constitution to Amend,” California Law Review, December, 2022, https://www.californialawreview.org/print/the-worlds-most-difficult-constitution-to-amend.

[x]       Dans and Groves, Project 2025, see note 25.

[xi]      “The Legislative Process,” Congress.gov, accessed May 24, 2025 https://www.congress.gov/legislative-process/presidential-action#:~:text=Presidential%20Actions%20(Transcript)&text=If%20the%20bill%20is%20signed,has%20adjourned%20under%20certain%20circumstances).

[xii]     “Federal Human Rights Laws,” Office of Human Rights, accessed March 27, 2025, https://ohr.dc.gov/page/federal-human-rights-laws.