Abortion, it almost goes without saying, is a singularly fraught issue. Pew Research describes the complexity in a May 6 report, “America’s Abortion Quandary”: “A majority of Americans say abortion should be legal in all or most cases, but many are open to restrictions; many opponents of legal abortion say it should be legal in some circumstances.”
Pew continues: “Relatively few Americans on either side of the debate take an absolutist view on the legality of abortion — either supporting or opposing it at all times, regardless of circumstances.”
A majority of the Supreme Court, however, appears to be prepared to take on this unwieldy, intensely personal subject by overturning the 1973 landmark decision Roe v Wade. “We hold that Roe and Casey must be overruled,” Justice Alito wrote in a draft opinion supported by four other justices. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The decision as written would in fact transfer jurisdiction over the laws governing abortion to the states, 26 of which “are certain or likely” to adopt laws banning “abortion, and those abortion bans would apply to both procedural and medication abortion,” according to the Guttmacher Institute.
In a May 3 interview with The Harvard Gazette, Laurence Tribe, a law professor at the school, argued that the public image of the Supreme Court has been badly “damaged by the obviously partisan divisions within the court” and exacerbated “by the court’s ham-handed attempts to persuade people that the political and ideological orientation of justices on the right or on the left somehow has nothing to do with the way they view legal issues.”
Tribe described the Alito draft as “a savage attack” on the Roe decision, and while it may yet be moderated, Tribe said:
I think it’s important for people to recognize that the thrust of the decision and the dramatic and radical approach it takes to interpreting the Constitution’s unenumerated rights, narrowly and stingily, will not depend on the tone. That is, the opinion, whether it’s delivered in a velvet glove or not, is going to be an iron fist. The court is really announcing that it’s laying down the gauntlet with respect to rights like those recognized in Lawrence v. Texas, in terms of sexual intimacy, and Obergefell v. Hodges, in terms of the right to marry.
As long ago as February 2006, Ronald Dworkin, a law professor at N.Y.U. who died in 2013, anticipated in The New York Review of Books the probability that Alito would become an absolutist member of the Supreme Court’s conservative wing:
His dissent in Planned Parenthood v. Casey, the Pennsylvania case in which the Supreme Court later reaffirmed its earlier Roe v. Wade protection of abortion rights, was of course of particular concern. Alone on the Third Circuit Court of Appeals, he voted to uphold a provision of the Pennsylvania law that required married women to inform their husbands before seeking an abortion, except women who could prove that their husbands were not the father of the child or that they would be subject to physical abuse if they told their husbands.
At one level, the likelihood that the Supreme Court will overturn Roe v. Wade would seem to be an ideal vehicle to invigorate the left. Such a decision, in political terms, would amount to the imposition of a major change in social policy, by a bare 5-to-4 majority of an unelected court, against the will of a majority of the electorate.
In other words, at a time of growing anxiety over authoritarian trends in the Republican Party, the autocratic nature of a court decision jettisoning Roe has the potential to inflame an already divided nation.
“Research generally shows that anger is an emotion that mobilizes people to act, and many will certainly be angered by this decision,” Brian Schaffner, a political scientist at Tufts and at the Institute for Quantitative Social Science at Harvard, wrote by email in response to my inquiry. “We saw Republicans use the teaching of Critical Race Theory in schools as a way of mobilizing their supporters with anger in 2021, but overturning Roe seems quite likely to enrage a much larger share of the population and could lead to a much different calculus for what we might expect in November.”
Celinda Lake, a Democratic pollster, similarly argued that upending Roe would have the “strong potential to mobilize the liberals, mobilize women voters, and mobilize low-propensity Democrats. 91 percent of Democrats and liberals support access to abortion and 71 percent of young voters support the same.”
Lake added two other points. First, “Americans always think of us going forward, not reversals, not taking away rights, not losing things, not losing freedoms,” and second:
There is an interesting overlap with the Jan. 6 hearings. The Trump Republicans are showing the lengths they will go to to overrule the will of the people and fundamentally change our system in ways voters never thought possible. These are fundamental attacks on our country. And voters believe this is the start not the end.
Surveys show that a decisive majority opposes overturning Roe v. Wade. In a CBS News survey conducted May 4 to 6, for example, 64 percent said Roe should be “kept as it is” and 36 percent said it should be “overturned.”
There are a number of countervailing factors, however, not least of which is public ambivalence.
Perhaps most important, before the Alito draft opinion became public, abortion did not rank high on the list when voters were asked to identify issues of importance to them. In an April 30 to May 3 YouGov/ Economist survey, abortion ranked at the bottom of 14 issues when respondents were asked if they were “very important” to them, behind jobs and the economy, crime, national security, education and health care. The YouGov/Economist poll was conducted over four days, and only on the last day and a half did the Alito opinion become public.
Since Politico revealed the contents of the draft opinion on May 2, however, there are some indications that the salience of abortion is increasing.
YouGov conducted a separate survey for Yahoo News from May 3 to May 6, covering the first four days during which the Alito draft received widespread publicity. Among key Democratic constituencies, abortion shot up the list of most important issues: From November to May the share of Democrats describing abortion at their most important issue rose to 20 percent from 4 percent.
There are at least three other hurdles facing Democrats seeking to mobilize voters in the 2022 midterm elections using the overturning of Roe to motivate turnout.
First, the number of women undergoing abortions has been declining steadily. The Guttmacher Institute found that the abortion rate for every 1,000 women between ages 15 and 44 reached a high of 29.3 in 1980 and 1981. Since then, the rate has declined to 13.5 per 1,000 in 2017.
Second, a majority of abortions now rely upon abortifacient drugs instead of surgery. The Guttmacher Institute found that in 2020, 54 percent of abortions were performed using mifepristone and misoprostol, the two-drug combination that is known as medication abortion or the abortion pill.
Third, the share of women getting abortions who are either high income or white has declined rapidly. FiveThirtyEight reported last January that in 1975, 65 percent of women getting abortions were white and 31 percent were Black or members of other minorities; by 2017, 47 percent were white and 49 percent minority members.
Caitlin Myers, a professor of economics at Middlebury who has written extensively on reproductive issues, was pessimistic about the likelihood of abortion functioning as a liberal mobilizing issue. She wrote by email:
The brunt of the impacts of a Roe reversal will be felt by young, poor, and Black women living in the Deep South and Midwest. Will their plight mobilize the left? I don’t know. But I will observe that when I drive around liberal Vermont I see plenty of lawn signs supporting Ukraine and Black Lives Matter, but have yet to see one supporting abortion rights.
Eitan Hersh, a professor of political science at Tufts, noted that a Supreme Court decision overturning Roe “would reinvigorate mass organizing on the left,” but, he added, “there’s a caveat” in the vitality of the grass-roots infrastructure the right has built over decades:
Even with all the news about the leaked court opinion, I’m not sure it sinks in for most Democrats what a long-term, deeply organized mass movement was behind the change. In addition to the development of the conservative legal movement and their nomination strategies, we have seen activists organizing in state legislatures preparing for this moment for decades. It took a very long time, a lot of patience and a lot of hard work from ordinary activists.
Hersh’s point is well taken, but there is a counter argument. Over those same decades, while conservatives made their case that abortion was immoral and tantamount to homicide, social scientists have quietly but steadily produced detailed research reports describing the social benefits that have been spurred by the Roe decision. Such studies have had limited visibility as far as the general public is concerned, but are surfacing or resurfacing now that Roe is facing an imminent upheaval.
In “Abortion and Selection,” for example, Elizabeth Ananat, Jonathan Gruber, Phillip Levine and Douglas Staiger, economists at Barnard, M.I.T., Wellesley and Dartmouth, argue that their research provides “evidence that lower costs of abortion led to improved outcomes in the form of an increased likelihood of college graduation, lower rates of welfare use, and lower odds of being a single parent.”
In conclusion, the authors write:
Our findings suggest that the improved living circumstances experienced by the average child born after the legalization of abortion had a lasting impact on the lifelong prospects of these children. Children who were “born unwanted” prior to the legalization of abortion not only grew up in more disadvantaged households, but they also grew up to be more disadvantaged as adults.
Gruber wrote by email that he, like many others, is “pro-choice on the grounds of women’s reproductive freedom,” but too few people recognize “that ending abortion rights imposes enormous additional costs to society.”
Gruber continued:
The very states that oppose abortion rights are the ones that engage in poorly designed tax cuts that leave them without the resources to support their neediest citizens. So ending abortion rights is basically imposing a large new tax on all citizens to support millions of unwanted, and disadvantaged, children — a tax that these governments are then unwilling to finance.
Ananat elaborated on a related point in an email:
We also know from recent research that has followed women who were unable to get an abortion under new laws — because they came to a clinic just after instead of just before a gestational cutoff in their state — that it is the case today that those who were unable to get a wanted abortion are much more likely to be poor in the years afterward, much more likely to get evicted, are in much worse mental and physical health, are much more likely to be in an abusive relationship. Their existing children — 60 percent of women seeking an abortion are already mothers — end up with poorer developmental outcomes. All of these results portend badly for their futures and their children’s.
Ananat argued that the role of abortion in coming elections depends on whether “the enormity of this news” sinks into the public,
particularly given the signals coming from the court and from state legislatures of an interest in complete bans on anything affecting a fertilized egg, including lifesaving surgeries such as for ectopic pregnancies and bans on some kinds of contraception and fertility treatments. Saliently for coalition-building, these medically necessary abortions, as well as contraception like IUDs and Plan B and interventions like IVF, are used by a much broader and more privileged cross-section of women than the low-income, politically marginalized women who are most impacted by laws that represent restrictions rather than abolition. And then some politicians are talking about taking on other rights guaranteed under Griswold, Obergefell, Loving, etc., which may help an even broader group of people see the linked fate of these civil rights.
Many Republican elected officials are legitimizing liberal fears.
Republicans in the Louisiana House have approved legislation in committee that would apply criminal homicide charges to both the woman and the abortion provider. In Idaho, Brent Crane, chairman of the House State Affairs Committee, announced on May 6 that he will hold hearings on legislation banning emergency contraception and abortion pills. Mitch McConnell, the Senate minority leader, told USA Today that if Republicans win control of Congress and the White House in 2024, a national abortion ban is “possible,” noting that “with regard to the abortion issue, I think it’s pretty clear where Senate Republicans stand.” The governor of Mississippi, Tate Reeves, was equivocal when asked if the state might make contraceptives like the Plan B pill or IUDs illegal: “That’s not what we are focused on at this time.”
Perhaps most ominously for those on the left, Carol Tobias, president of the National Right to Life Committee, told The Times, “If a dog catches a car, it doesn’t know what to do. We do.”
I asked two Republican pollsters — Ed Goeas and Whit Ayres — about the possible consequences of a court ruling overturning Roe. Their replies could best be described as restrained.
Goeas emailed me back: “I increasingly have come to believe that neither Republicans nor Democrats represent the majority of the American public that is truly centrist. Not moderate but centrist.”
In the case of the abortion debate, Goeas continued,
the overwhelming majority do not fall into the category of abortion on demand or no abortion in any case. Most fall into a category of abortions with limits. That’s where the real discussion has been for decades, even though many of those people may call themselves pro-life or pro-choice.
Many people “dread the thought of a loud, ugly fight over Roe v. Wade,” Goeas argued. “The fight may still rage on because of our increasingly electing members from the two extremes. If it does, I believe centrist America will just turn down the volume.”
Ayres argued that “most Americans are torn about the issue” and have remained so over time:
Opinions on abortion have been remarkably stable, unlike opinions on gay marriage, which have moved with lightning speed. I am convinced that our children and grandchildren will still be arguing about the morality of abortion.
Ayres downplayed the prospect of a Supreme Court decision having a major influence on the outcome of the 2022 elections:
Abortion has never been considered as important as issues that affect almost everyone like inflation, unemployment, Covid, and crime. But the people who do care about it care incredibly intensely, so this Supreme Court decision, if it follows the Alito draft, will energize those people on both sides of the issue.
Ryan Enos, a political scientist at Harvard, was less equivocal:
At first blush, the overturning of Roe certainly seems like it could be a mobilizing event: it involves a medical procedure that is extremely common and has been experienced by a large portion of women in the United States and could materially affect the lives of millions of people. In some states, it will be the rare instance of the state taking away a right that people have previously enjoyed. To my knowledge, this has not happened since Southern states moved to strip voting rights after the end of Reconstruction.
At the same time, Enos continued:
Your typical voter has only a vague notion of the ideological composition of the court, let alone how it got that way. While the Republican hijacking of the court to push an ideological agenda seems like a grave injustice to many of us, understanding why this is an injustice takes a level of engagement with politics that most voters simply don’t have.
Instead, Enos argued:
A more likely way for Roe to matter is that the most active Democrats, those who donate money and volunteer, will be animated for the midterm. Democrats were so animated by Donald Trump that they brought an energy to the election in 2020 that was impossible for them to sustain. While this might return in 2024 if Trump is on the ballot, it was not going to be there in 2022 without a catalyzing force — overturning Roe might be that force.
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