With the U.S. Supreme Court apparently poised to strike down Roe v. Wade (1973), pro-choicers and pro-lifers have both claimed mainstream support while denouncing their opponents as extremists. Here's everything you need to know:
What do the polls say?
Outside the Supreme Court last week, Sen. Elizabeth Warren (D-Mass.) blamed Republicans for Justice Samuel Alito's draft ruling, which was leaked to the press the previous night and would overturn Roe v. Wade. "They have been out there plotting, carefully cultivating these Supreme Court justices so they could have a majority on the bench who would accomplish something that the majority of Americans do not want," Warren said.
A flurry of articles emerged to back up her claim that Roe is popular and overturning it is not. "By a nearly two-to-one margin, voters oppose overturning Roe v. Wade," Politico reported, citing a poll conducted Tuesday. "Sixty-six percent [of Americans] say Roe v. Wade should not be completely struck down," CNN found. According to an ABC News/Washington Post poll, 54 percent of Americans want the court to uphold Roe, while only 28 percent want to see it struck down.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
The trend seems to hold even if the question isn't directly about the court case in question, the details of which many Americans may not know. When asked whether abortion should be legal or illegal in "all or most cases," respondents to the ABC poll favored "legal" 58-37. The margin was even wider when respondents were asked whether the decision to have an abortion should be left to a woman and her doctor or "regulated by law." Some 70 percent chose the first option, while only 28 percent backed legal restrictions on abortion.
But these questions are still rather vague. What about concrete policies? Well, the same ABC poll — which offered respondents a binary, yes-or-no choice — found that 57 of Americans oppose a 15-week ban, while 58 percent oppose a six-week ban. And if you add "It depends" as an option, those numbers drop from majorities to pluralities. A Pew Research Center survey found 44 percent of Americans think abortion should be legal at six weeks. Another 21 percent said it should be illegal at that stage, and 19 percent said it depends. On the question of a 14-week ban, the numbers were 34 percent opposed, 27 in favor, and 22 percent on the fence.
Data from Gallup shows public opinion on abortion has been mostly steady since 1973, with 10 to 20 percent of Americans believing abortion should always be illegal, between 20 and 30 percent believing it should always be legal, and between 50 and 60 percent saying it should be legal in some circumstances. Pew notes, however, that the divide is far more partisan than it was when Roe was handed down and that "change in attitudes has come almost entirely among Democrats," with support for legal abortion in all or most cases among Democrats up 17 points since 2007, from 63 percent to 80 percent.
But wait, what do the other polls say?
National polls aren't everything. The New York Times notes that support for legal abortion varies widely by state. In West Virginia, Kentucky, Tennessee, Mississippi, Alabama, Louisiana, Arkansas, and Utah, pro-lifers outnumber pro-choicers by a margin of 10 points or more.
Also, as with all surveys and polls, it depends on how you frame the question. According to FiveThirtyEight, "[p]olls have found that a large majority of Americans support abortion in the first trimester, but that support tends to drop in the second trimester."
At this point, respondents' views sometimes become contradictory. A 2018 Gallup poll found that 65 percent of Americans believed abortion should generally be illegal during the second trimester of pregnancy. In the same survey, 69 percent of respondents said the Supreme Court should not overturn Roe v. Wade. In other words around two-thirds of Americans supported Roe while a similarly large majority supported abortion restrictions that are unconstitutional under Roe, which protects the right to abortion until the last few weeks of the second trimester.
Abortion rights activists who advocate for unrestricted abortion up until birth are therefore "way out of the public mainstream," David O'Steen, the executive director of the National Right to Life Committee, told The Associated Press.
And writing for National Review, Alexandra DeSanctis argued that citing statistics about public support for Roe is too simplistic. "For one thing," she wrote, "surveys suggest that many Americans don't even know Roe dealt with abortion, as well as that a majority of Americans believe overturning Roe would lead to abortion being illegal across the entire country, a status quo that most Americans don't support."
What would overturning Roe actually do?
The majority opinion in Roe held that "the state may not regulate the abortion decision" during the first trimester of pregnancy, as summarized by the Oyez legal archive. During the second trimester, states are permitted to "impose regulations on abortion that are reasonably related to maternal health." Once the point of viability is reached — meaning the baby could survive outside the womb — states could "regulate abortions or prohibit them entirely" as long as they maintained exceptions for the life or health of the mother.
Under Roe, attempts to ban abortion before the point of viability — around 28 weeks in 1973, but now around 23 or 24 weeks due to medical advances — were struck down as unconstitutional. Planned Parenthood v. Casey (1992) held that any regulations on abortion before the point of viability were also unconstitutional if they imposed an "undue burden" on the woman seeking an abortion.
Alito's draft ruling would overturn both precedents, allowing states to impose whatever abortion bans or restrictions they wanted at any stage of pregnancy, at least where federal reulation is concerned. Controversial policies already under consideration in some states, like a 15-week ban, a ban once a fetal heartbeat can be detected at around six weeks, a requirement that married women seeking abortions inform their husbands first, or even a nine-month waiting period, would all become feasible in states with conservative governments.
Of course, state laws and precedents would remain a constraining factor. Ten state supreme courts have ruled that their state constitutions protect a woman's right to have an abortion. In the other 40, everything's on the table — in theory. In practice, the end of Roe might see some blue and purple states codify protections of abortion rights while red states pass more regulations.
Neither party has the votes in the Senate to pass a federal law restricting or enshrining abortion rights, so these battles will be fought in state legislatures. Blue states like Massachusetts and New York have already moved to codify abortion rights into state law, while red states like Oklahoma have passed near-total bans.
Create an account with the same email registered to your subscription to unlock access.