When Pluralism Decides the Right to Choose

A half century after Roe and nearly two years after Dobbs, there is no consensus on abortion across the federation.

Since the federal Supreme Court’s decision returning abortion regulation to the democratic process each side of the political aisle is facing its own challenges in grappling with a high-profile, hot button issue now left to democracy.

For conservatives, they finally notched a victory in a culture war they’ve been losing for decades: not constitutionally outlawing abortion, but rather devolving the issue to the people in the states even if that means legal abortion in certain states. But now conservatives are faced with voters in a select number of competitive states and districts who oppose abortion regulations, whether or not they are relevant to their own jurisdiction. In some cases, this brute reality has applied pressure on otherwise conservative figures to moderate on or omit the issue in their messaging, as Democrats seek to associate the overturning of Roe with any Republican candidate this November.

For liberals, the Dobbs decision is a devastating setback in the broader goal of securing abortion access. However, polling suggests that the public is ostensibly more sympathetic to the Democratic case, depending on the methodology. In most instances, Dobbs has bolstered Democrats’ case having notched significant wins via referenda, in statehouses, and in court. This has put wind in the sails of the Democrats’ case to retain key federal offices as well as state legislatures and possibly a small number of governorships this year. The party appears motivated to pass federal legislation to deregulate abortion. The proposal to “codify Roe” would limit abortions up to the point of viability, the same standard set in Roe, though it would allow for late-term abortions in cases where the mother’s life or health were at risk.

But all of this raises larger questions about whether abortion should be left to the people in their states, and that if such controversial issues cannot be resolved through the democratic process then what does that leave the democratic process to determine?

Public opinion on abortion and how it is characterized is complex and skews more restrictive or less restrictive depending on the specificity of the question. Many mainstream national polls, like Pew Research, ask respondents to choose between a binary “legal in all or most cases” or “illegal in all or most cases”. In that instance, 61 percent of Americans support legal abortion in “all or most cases”. Other polls, like Gallup, show 69 percent support for abortion access in the first trimester, but that figure plummets to 37 percent and 22 percent for abortion access in the second and third trimester, respectively.

Further complicating the question are the conditions under which Americans believe abortion should be legal from the mother’s health to birth defects to economic reasons and rarer causes like rape or incest. The Guttmacher Institute, which conducts research on issues relating to reproductive healthcare, found the most common reasons women cite for seeking an abortion include the pregnancy interfering “with a woman's education, work or ability to care for dependents (74%); that she could not afford a baby now (73%); and that she did not want to be a single mother or was having relationship problems (48%).”

Importantly, the Kaiser Family Foundation has found that the vast majority of abortions — 81 percent — occur before 9 weeks, and that despite six-week bans uniformly being characterized in the press as “before most women know they’re pregnant”, 45 percent of all abortions occur within six weeks of pregnancy.

While there is polling that asks Americans under what circumstances they may support abortion, like this Gallup poll, the most common reasons women cite are not included in most polling that asks about circumstantial support for abortion — which in itself is difficult to find. This invites a question that gets at how varied support for abortion may be beyond the surface. If “all or most” cases of abortion involve cases that create socioeconomic burdens or relationship problems — and not because of the very rare yet commonly cited reasons, like the mother’s mortality or rape — how might that influence public opinion results?

Further complicating the matter is the public’s opposition to Roe by name being overturned — which set the constitutionally protected period at which abortion was legal nationally to the point of “viability”, roughly around 24 weeks — and the public’s very same opposition to abortion at 24 weeks.

All of this suggests that opposition to Roe may not be informed, or that what the public oppose is the general disruption that overturning Roe prompted, the kind that conservatives in this instance find revolutionary and liberals find intolerable.

Meanwhile, the polarizing issue of abortion regulation is beginning to resolve itself through the federated democratic process.

According to the Wall Street Journal’s compilation of the data, about 46 percent of reproductive age women live in states where abortion is legal either up to after the point of “viability”. About one-quarter of these same women live in states with a total ban on abortion. The remaining women live in states where abortion remains legal without either a statewide ban or protection, where a ban isn’t being enforced, or where abortion is illegal only after a certain point.

In Mississippi, the state where Dobbs all started, one poll found a bare 51 percent majority of Mississippians oppose Dobbs, with a 46 percent plurality supporting a 15-week ban which was the proposal at issue in the Supreme Court case. 48 percent agreed the state has the right to some restriction on abortion.

In Kentucky, 52% of voters narrowly declined a measure that would effectively amend the state’s constitution to declare that abortion rights was not protected. In Kansas, about 59% of voters took a similar decision on a similar question regarding language in the state constitution.

In Texas, the most populous state with a total ban, a University of Texas poll from June 2022 found that a small 54 percent majority of Texans support legal abortion until 24 weeks if the mother’s life is endangered. On the flip side, no more than 35 percent Texans support abortion past 12 weeks if the circumstance relate to income, or the woman simply not wanting more kids.

The conventional wisdom says that abortion is a winning issue for Democrats. How much the issue contributed to stemming the GOP’s gains in the 2022 elections is much debated. In states like Michigan and Wisconsin where the issue was prominent, candidates for the state legislature and governor, respectively, prevailed. On the other hand, Republicans gubernatorial candidates in Ohio, Texas and Florida were re-elected by wider margins despite an avalanche of critical press in light of Dobbs.

All in all, multiple factors — (1) the highly circumstantial support and opposition to abortion, (2) that most abortion advocates are concentrated in states where abortion is already protected, (3) the unlikelihood pro-choice red state voters will elect federal Democrats, (4) the lack of practical relevance to most Americans — could be reasons why Democrats’ may not stand to gain as much traction from the issue as news reports suggest.

But Republicans remain comfortably on the defensive on messaging. Donald Trump called an Arizona law that holds doctors liable for administering most abortions as a ban that goes “too far”. In the same state, Kari Lake, the failed Republican gubernatorial candidate and now U.S. Senate candidate, is juggling a seemingly moderate stance on the position in a campaign ad while criticizing the decision of Arizona’s executive to refuse to enforce state law.

Since then, the democratic process across the union has been underway from the passage of laws, to ballot proposals, to court proceedings, to appeals, to protest and fundraising and so on. This is probably the highest profile example of an issue with such moral weight that actually feels like it is being governed by the people. And it seems that on this issue, amidst the patchwork of pluralism, both the Roe standard and the abortion ban standard are each to the left and to the right, respectively, of many if not most Americans’ preferences.

Whether this issue, too, will be federalized remains an open question. Federal Democrats’ are in a not-great but still relatively better position compared to federal Republicans in passing their most ambitious policy to deregulate abortion before viability. Federal Republicans, on the other hand, have toyed with a 15-week ban, which depending on the conditions, may be as close or closer to national public opinion despite most reporting.

Come November, it will be no surprise to see a result similar to that of 2022: an election with multiple issues at play, seen and unseen, that wind up in something of a wash if not in the result then on the message. The federation doesn’t always send clear messages.

And yet, we are a union of states spoken of as a unified voice. On this issue, and many others, we are not. The American public never reached a consensus on abortion over the last almost 50 years with Roe. To those like the late liberal lioness Ruth Bader Ginsburg, she would’ve preferred that abortion rights be secured through legislatures and the courts, as she said at Harvard in 2013. Right now, the union is giving that a try. The results might not be what we want in one state or another nor is there an expectation we reach a consensus — but perhaps in a pluralist democracy that intends to remain pluralist all of that is beside the point.

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