Jesse Wegman, a member of the New York Times editorial board, says polling shows the Supreme Court, which is expected to overturn Roe v. Wade next month, is “out of step with most Americans.” To support that claim, Wegman points to Gallup results indicating that “an overwhelming majority of Americans still support a woman’s right to terminate her pregnancy in at least some circumstances.” But since that “overwhelming majority” includes people who describe themselves as “pro-life” and therefore probably favor tight restrictions on abortion, the finding that Wegman cites does not tell us what Americans think about specific policies. Nor does it tell us whether they think those policies should be left to the states, which is what is overturning Roe would do.
Gallup and other polling organizations have asked more pertinent questions, and the results do indicate that most Americans support Roe. But polling anomalies suggest that some of the people who take that position do not fully understand what it entails. And as critics of Roe would be quick to point out, constitutional adjudication is not a popularity contest, which makes the relevance of polling data questionable.
With that caveat in mind, what do recent surveys tell us about the popularity of the Court’s impending decision? A Fox News poll of registered voters conducted on Monday, before Politico published a leaked draft of a Supreme Court majority opinion that suggests Roe is doomed, asked, “Do you think the Supreme Court should overturn Roe v. Wade or let it stand?” Only 27 percent of respondents said the Court should overturn Roewhile 63 percent said it should not and 10 percent declined to take a position.
At the same time, however, 54 percent of respondents thought their own states should pass “a law banning abortion after 15 weeks of pregnancy.” That is exactly the sort of law at issue in Dobbs v. Jackson Women’s Health Organizationthe case that the Court is expected to decide next month. Dobbs involves a Mississippi law that generally prohibits abortion after 15 weeks, which is plainly inconsistent with the Court’s abortion precedents.
Under Roe‘s framework, states were not allowed to regulate abortion based on “the potentiality of human life” until the third trimester, and even then they had to make exceptions for abortions deemed necessary to preserve “the life or health of the mother.” Planned Parenthood v. Caseythe 1992 decision that retained Roe‘s “central holding,” forbade any regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Since the dividing line for “viability” (the point at which the fetus can survive outside the womb) is generally said to be around 24 weeks, a ban like Mississippi’s is a non-starter under Caseywhich is why upholding the law would require revising or repudiating Casey and Roe. It seems a substantial number of the Fox News respondents who said Roe should be preserved did not realize that.
A Marquette University Law School poll conducted last fall showed a similar inconsistency. While just 21 percent of respondents favored overturning Roe (which the poll described as “the 1973 decision that made abortion legal in all 50 states”), 37 percent said the court should uphold Mississippi’s law. Maybe the difference can be explained by respondents who imagined a scenario where Roe It was substantially revised without being overturned altogether. More likely, some of the respondents did not understand that Roe and Casey preclude a 15-week ban. Notably, a third of respondents said they either knew nothing about Roe or did not know enough to offer an opinion, while 30 percent said the same about bans on abortion after 15 weeks.
A Politico/Morning Consult poll conducted on Tuesday, after the leaked opinion was published, put the Roe question this way: “As you may already know, the Supreme Court is going to rule on a case this year that challenges Roe v. Wade, the 1973 legal decision that established the constitutional right to abortion. Do you believe that the Supreme Court should overturn its decision in the 1973 Roe v. Wade abortion case, or not?” Half of the respondents said Roe “should not be overturned,” while 28 percent said it should and 22 percent offered no opinion.
Here, too, there is evidence of confusion. Nearly half of respondents (47 percent) said “abortion should be legal in the US nationwide,” which is consistent with upholding Roe. But while 28 percent of respondents favored overturning Roejust 19 percent agreed that “state governments should decide whether abortion is legal or illegal in their states,” which is what would happen if Roe were overturned.
Between 1989 and 2002, Gallup phrased its Roe question this way: “The 1973 Roe versus Wade decision establishing a woman’s constitutional right to abortion, at least in the first three months of pregnancy. Would you like to see the Supreme Court completely overturn its Roe versus Wade decision, or not?” That wording was a bit misleading, since both Roe and Casey rule out bans on pre-viability abortions, not just abortions in the first trimester. Furthermore, the question left no room for a middle position that would allow, say, a 15-week ban like Mississippi’s but not a six-week ban like the one that took effect in Texas last September.
Gallup’s wording since 2003 avoids those problems but is even less informative about what Roe said: “Would you like to see the Supreme Court overturn its 1973 Roe versus Wade decision concerning abortion, or not?” Last year, 58 percent of respondents said Roe should not be overturned, while 32 percent said it should and 10 percent offered no opinion.
Again, it looks like the pro-Roe Respondents were not necessarily familiar with the details of that ruling. While 32 percent wanted to ditch Roe41 percent said abortion should be banned after 18 weeks, which would require at least weakening Roe.
The results from an ABC News/Washington Post poll conducted last week present less of a puzzle. The share of respondents who opposed a 15-week ban (57 percent) was similar to the share who wanted the Court to uphold Roe (54 percent). A total of 66 percent said the Court should either maintain the status quo (45 percent) or make abortion access easier (21 percent).
The most commonly discussed Gallup results—the ones that Wegman cited in the Times—tend to obscure the diversity of Americans’ views on abortion. Last year, 32 percent of respondents said abortion should be “legal under any circumstances.” Just 19 percent said abortion should be “illegal in all circumstances.” A plurality of 48 percent said abortion should be “legal only under certain circumstances.”
Based on those numbers, Wegman is right that “an overwhelming majority of Americans still support a woman’s right to terminate her pregnancy in at least some circumstances.” But the plurality’s view covers a wide range of policies, from liberal laws that allow abortions in nearly all cases to strict laws with just a few narrow exceptions. The plurality apparently includes a lot of people who lean toward the latter position, since 47 percent of respondents described themselves as “pro-life” but only 19 percent said abortion should always be illegal.
In a 2019 Pew Research Center poll, 70 percent of respondents said Roe should not be “completely” overturned, while 28 percent said it should and 3 percent gave no answer. Consistent with the evident support for abortion rights, 61 percent of respondents said abortion should be legal in “all” or “most” cases, while 38 percent said it should be illegal in “all” or “most” cases.
The key question for the Supreme Court, of course, is not what most Americans think about abortion. It is whether the Constitution guarantees a right to abortion—or, to put it another way, whether the Constitution imposes limits on state regulation of abortion. Judging not only from the leaked opinion but also from the oral arguments, most of the justices think it does not.
Another consideration in deciding whether to renounce Roe—one that played an important role in Casey And it seems to carry weight with Chief Justice John Roberts—is the extent to which Americans have come to rely on the freedom guaranteed by the Court’s abortion precedents, whether or not those cases were correctly decided. New York Times columnist Bret Stephens, for example, concedes that “Roe v. Wade was an ill-judged decision when it was handed down.” But he argues that overturning it half a century later would be “a radical, not conservative, choice” because of the longstanding expectations it would upset. For those who find that argument compelling, polling data might seem relevant after all.