Nixing Roe won’t end abortion fight
THE retirement of Justice Anthony Kennedy has renewed speculation his replacement could allow the Supreme Court to overturn Roe v. Wade, the case that transformed abortion into a constitutional right. That outcome seems unlikely. And even if the court did overturn Roe v. Wade, it wouldn’t end the debate over abortion — only prompt a robust, serious debate about it.
While Supreme Court nominee Brett Kavanaugh is conservative, even if his nomination is confirmed it’s not clear all five court conservatives would vote to overturn Roe given their typical deference to precedent. This is particularly true of Chief Justice John Roberts, who went to extraordinary lengths to find a way to rule the Affordable Care Act was constitutional even when the other four court conservatives were ready to strike it down.
It appears the court would instead be more inclined to uphold restrictions on abortion, such as laws banning most abortions after 20 weeks of pregnancy, but not outright bans.
Yet the overturning of Roe would leave the abortion debate in the hands of state legislatures. Again, this might lead to more restrictions on abortion but few outright bans. This is because the public, for years, has expressed a preference for restricting abortion over outlawing it.
In May, Gallup polling showed just 29 percent of the public wants abortion legal under all circumstances. Since 1976, the abortion-rights absolutist position has been held by 21 percent to 34 percent of Americans.
A slightly lower share of people believe abortion should be illegal in all circumstances, with 18 percent holding that view.
Fifty percent believe abortion should be legal only under certain circumstances. That group includes many who look favorably on additional restrictions.
When Gallup further breaks out the results, and identifies the share of people who believe abortion should be legal in “only a few” circumstances, the share of Americans supporting either a ban or significant restrictions on abortion represent a combined 53 percent of Americans, while just 43 percent support generally permissive abortion laws. Those figures have varied little over decades of Gallup polling.
Nationally, Gallup finds there’s an even split between those who describe themselves as pro-life and those who describe themselves as pro-choice.
As a result, should Roe v. Wade be overturned and state legislatures then set abortion regulations, public sentiment suggests most states would provide greater protections for the unborn, particularly after the first trimester, but that political support for a ban would not exist.
Many forget that states were moving away from laws outlawing abortion before Roe. Four states had repealed abortion bans, while another 13 amended abortion laws to be less restrictive. The latter group included states like Arkansas, Georgia, North Carolina, South Carolina and Virginia.
Thus, for those who support unfettered abortion, the idea that Roe v. Wade might be overturned prompts fear not because it would result in widespread bans, but because it would force abortion-rights absolutists to defend their position in the democratic process — and they know how that will turn out.