Outside the Beltway

Majority Opposes Overruling Roe v. Wade

As Washington gets ready to fight a new battle over Roe v. Wade an new poll shows that most Americans oppose overturning that decision.

Doug Mataconis · Sunday, July 1, 2018 · 14 comments

With abortion apparently about to enter the political conversation again due to the looming battle over the confirmation of a successor to Justice Anthony Kennedy, it’s worth noting that a new poll shows that a large segment of Americans opposes overruling the Supreme Court’s landmark ruling in Roe v. Wade:

Most Americans support Roe v. Wade, the Supreme Court decision that legalized abortion rights, a new survey shows.

The Kaiser Family Foundation poll of 1,492 Americans found that 67 percent support the ruling that legalized abortion rights for the whole country, while 29 percent would like the Supreme Court to overturn it.

It’s a big question now with the pending resignation of Justice Anthony Kennedy, who has provided the “swing vote” supporting Roe v. Wade in legal challenges. Republicans who control the White House, Senate and the House say they would like to see a new appointee to the court who would vote to overturn the ruling.

Kaiser interviewed 1,492 adults by telephone for the poll, which was conducted before Kennedy announced he would resign. The margin of error is 3 percent either way but Kaiser says the group it interviewed is representative of the nation as a whole.

When divided by party affiliation, about 53 percent of Republicans said they would like to see Roe v. Wade overturned. But 81 percent of Democrats and 73 percent of independents said they would not want to see the 1973 court decision reversed.

(…)

The Kaiser survey found that 42 percent of voters say they would be more likely to vote for a candidate who supports access to abortion service, while 29 percent said they would be more likely to vote for a candidate who would restrict access. About a quarter said that abortion questions would not influence their vote.

You can read the full poll results at the Kaiser Family Foundations website.

This poll result is interesting in no small part because polling on the more general topic of abortion itself has shown the American public is more closely divided than they are in response to a question about the fate of the decision in Roe. The most recent Gallup poll on the subject, for example, show that the public was quite literally equally divided on the question of whether they identify as “pro-choice” or “pro-life,” with 48% selecting each description. This is consistent with the history of Gallup’s polling on this question stretching back to before 2000 and is also consistent with other polls on this topic. The same Gallup poll found that roughly half of Americans believe that abortion should be legal, although they do favor some limitations. Meanwhile, 29% of respondents to the poll said that abortion should be legal under all circumstances, while only 18% saying that it should be illegal under all circumstances. This means that 80% of Americans believe that abortion should be legal in, as Gallup puts it, “some or all” circumstances. This is important in no small part because the Roe decision does not establish that abortion must be legal in all circumstances. Instead, it established that the extent to which the government has an interest in regulating the practice of abortion that increases as the pregnancy gets closer to the point of viability. This has been restated in the cases the Supreme Court that handed down since then, most notably Planned Parenthood v. Casey. Viewed that way, then I suppose that the wide support for maintaining the status quo that Roe v. Wade and its progeny have created isn’t that surprising.

As a matter of law, of course, public opinion on what should happen to Roe v. Wade is not relevant. Nonetheless, Harry Enten suggests in a piece at CNN that it could play a role nonetheless:

The Supreme Court in theory is immune from the majority will. Justices have lifetime appointments.

Yet, there is a body of academic literature to suggest that the court does respond to public opinion. That is, the court is directly influenced by the public.

As Harvard Law School Professor Michael Klarman has noted, many of the larger social changes inflicted by the court only occurred when public opinion on the issue changed. He points to Brown v. Board of Education coming after the desegregation of the military, civil service and baseball.

Polling at the time indicated that a majority of Americans were for the decision. When it came to same-sex marriage, the Supreme Court only legalized it when public opinion shifted in its favor.

Put another way, the court doesn’t lead as much as it follows.

When the court tries to get ahead of public opinion, it can inflict a major backlash. The most noticeable example is when the court outlawed the death penalty in 1972. Although the public’s favoring of the death penalty was dropping at the time of the decision, more Americans were for it than against it. After the decision, support for the death penalty climbed by about 15 points and states passed measures challenging the court’s decision.

The Supreme Court eventually reversed its own decision and reinstated the death penalty.

Today, Roe is supported by a majority of the public as it was in a Louis Harris & Associates poll in 1973 after the decision was first reached. And although the question wording used by Harris was slightly different than that used by Kaiser, support for the decision seems to have risen a little bit.

But even on the issue of abortion, it could be argued that the court energized the anti-abortion groups and polarized the issue across partisan lines.

That was the argument that none other Justice Ruth Bader Ginsburg has offered. She noted back in 2013 that her “criticism of Roe is that it seemed to have stopped the momentum on the side of change.”

Indeed, abortion wasn’t a lightning rod issue during the presidential campaign (1972) before Roe was decided. As Ken Rudin points out, it only became a core issue for the Republican Party starting in 1974 and especially after the 1976 presidential campaign.

Now, it’s difficult being an elected Republican without being anti-abortion.

A new conservative court could follow the party line when it comes to abortion. On the other hand, they will be aware of the public backlash that would follow. Facing a potentially similar backlash in 2012, Supreme Court Chief Justice John Roberts, who many have said might turn into the new swing justice in Kennedy’s absence, went against his conservative tendencies when deciding the fate of the Affordable Care Act (Obamacare). In arguably the biggest case before the court this decade, Roberts chose to uphold it.

I’m not arguing here that public opinion will definitely sway the justices. It may not. But given the coming ideological makeup of the court, public pressure might be one of the only barriers standing in the way of the of the court overturning Roe.

Enten’s argument is essentially another version of the old argument that the Justices, as well as lower Federal Court Judges, read the same newspapers and watch the same news broadcasts that the rest of us do. They are also aware that their decisions quite often have a broad impact on society as a whole and that people act, or choose not to act, based on what they rule in a given case, especially when those cases deal with issues such as abortion rights and LGBT rights. While these considerations are unlikely to sway Justices such as Samuel Alito and Clarence Thomas, who have been routinely dismissive of Roe and its progeny, they could be a consideration that plays into the position that someone such as Chief Justice Roberts might take in a potential challenge that could mean the overruling Roe in its entirety.

Update July 2, 2015: A newly released Quinnipiac poll shows similar results:

There is only a small gender gap as American voters agree 63 – 31 percent with the U.S. Supreme Court Roe v. Wade decision on abortion, according to a Quinnipiac University National Poll released today.

Men agree 61 – 32 percent, while women agree 65 – 30 percent, the independent Quinnipiac (KWIN-uh-pe-ack) University National Poll finds. Republicans disagree with Roe v. Wade 58 – 36 percent. Every other listed party, gender, education, age and racial group agrees.

These poll results should make the upcoming debate on President Trump’s second Supreme Court pick very interesting indeed.