Republicans down, abortion up. What did overturning Roe achieve?
The Florida Supreme Court’s go-ahead last week for a November abortion referendum sets in motion the most significant electoral contest on the issue since the U.S. Supreme Court overturned Roe v. Wade. Floridians will decide whether to override the legislature’s six-week abortion ban, which the court upheld, with a constitutional amendment allowing unfettered abortion access until about 24 weeks of pregnancy.
One poll late last year put support in the state for the pro-choice measure at 62%. The Biden campaign is gleeful about the chance to play up abortion rights in a state Donald Trump won by less than four points in 2020. The smart money is still on Trump winning Florida, without which his path to the presidency would collapse — but keeping the state of nearly 23 million people in the red column would almost certainly depend on hundreds of thousands of Floridians voting pro-Trump and pro-choice.
As that contest gets underway, it’s worth taking stock of just how badly the Republican Party and the pro-life cause have been routed since the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. First, Dobbs contributed to Democrats’ historically strong performance in the 2022 midterms. In 2020, according to a careful academic study, abortion pushed independent voters toward the GOP by 4.5%. In 2022, the issue pushed them toward Democrats by 13%.
As the authors explain: “For decades, while partisan voters had distinct positions on abortion, it did not seem that elected officials had much say in the matter as Roe v. Wade generally established the constitutional right to abortion.” In other words, abortion policy had been severed from the electoral process. Dobbs restored the connection, leading “to a recalibration of priorities” among pivotal voters. The result was a boost to Democratic candidates that helped deny Republicans a politically stable majority in the House of Representatives.
Meanwhile, since Dobbs, the prochoice side has won referendums in state after state — not just in blue states such as California (67% to 33%) or purple states such as Michigan (57-43) but red states such as Kansas (59-41), Ohio (57-43), Montana (53-47) and Kentucky (52-48). The arena of direct democracy has been an unmitigated disaster for abortion opponents. If the six-week ban survives in Florida, it will probably only be because the state requires a 60% supermajority for constitutional amendments.
Sometimes parties pay a temporary electoral price while securing enduring policy victories. Think of the Democrats passing Obamacare; they lost political power in both the 2010 and 2014 midterms, but expanded health-care subsidies remain intact seven election cycles later. Republican legislatures have successfully banned abortion in more than a dozen of the country’s reddest states. But according to a report last month from the Guttmacher Institute, a pro-abortion-rights organization, the number of legal abortions in the United States increased 10% between 2020 and 2023, exceeding 1 million for the first time since 2012.
Guttmacher attributes the uptick partly to interstate travel; states neighboring those where abortion is banned saw 37% more abortions than in 2020. The group also cites subsidies from “abortion funds,” flush after Dobbs, and the increased availability of chemical abortion. How Dobbs will bend America’s abortion curve over the long run is uncertain, but, so far, the curve has not bent in the direction hoped for by the pro-life movement, which worked for years to overturn Roe.
One response is to blame the Republican Party for lacking a politically salable “way to talk about abortion.” But there’s no way for Republican politicians to talk around the fact that the median voter appears to regard abortion restriction warily. Nor is there evidence of that wariness abating; indeed, it has been increasing over the past decade. Trump’s rivals in the 2024 primary argued that he was unelectable, but his mooted abortion stance — a 15-week ban that would outlaw only about 4% of abortions — puts him closer than his party to demonstrated voter opinion.
History might show that the country’s polarizing debate about Roe was only secondarily about abortion and primarily about an older question: the source of political authority. In his dissent in the 2015 case establishing a constitutional right to same-sex marriage, Justice Antonin Scalia wrote that “it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
The Supreme Court in Dobbs declared that, when it comes to abortion, the justices would cease their half-century reign. But it looks so far like the new Ruler, the American people, will sanction a similarly permissive abortion regime overall, albeit with geographic variation. The real test of the Dobbs opinion will be whether abortion policy made by majorities carries more legitimacy than policy made by the Supreme Court - and whether the process of expanded democratic give-and-take strengthens or weakens political institutions.
Roe helped Trump take the White House in 2016 by driving conservative turnout in an election that would immediately change the balance on the Supreme Court. But with Roe gone, Republicans have been victims of their own success.
To be restored to power in 2024, the populist president who engineered Roe’s overthrow will need to master the disorienting democratic forces unleashed by that project.