abortion, abortion rights, Constitution, Gallup, heartbeat bills, Im-Politic, Kaiser Family Foundation, National Opinion Research Center, Pew Research Center, Planned Parenthood of Southeastern Pennsylvania v. Casey, Quinnipiac College poll, Robert G. McCloskey, Roe vs. Wade, Supreme Court
If only most of the major challenges facing Americans were as easy to meet as arriving at a satisfactory compromise over abortion. In fact, in the key respects, the challenge has already been met, as a general consensus is staring the nation in its collective face, has been in place literally for decades, and looks guaranteed to remain solidly in place for the foreseeable future.
Sounds crazy, doesn’t it, given the political and policy brawl that has erupted in recent weeks over a handful of states’ approval of laws dramatically reducing the circumstances in which abortion will remain legal? But this contention is backed up strongly by the national legal regime regulating abortion right now, by all the polling, and by everything known about how the Supreme Court – which it’s thought on both sides of the issue could well transform the status quo it’s created since its 1973 Roe v. Wade decision – historically has handled such explosive questions. Moreover, abortion is one of those matters in which the politics, the law, and the history powerfully reinforce each other.
Let’s start with the law. The major Supreme Court decisions are of course the Roe case – which established a Constitutional right to abortion but also authorized states to infringe on it in various ways during a pregnancy’s second and third trimesters – but also a ruling in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey case. In it, a 5-4 majority of the Court created a standard to govern such state restrictions on abortion, holding that such measures could not impose an “undue burden” on women seeking abortions that “created a substantial obstacle” to undergoing the procedure “before the fetus attains viability.”
Revealingly, that guideline nicely describes the current U.S. consensus on abortion rights: Women deserve a fundamental right to abortion, but (like most other rights), it’s not absolute. More specifically, the most widely agreed on exceptions involve what are clearly exceptional (and exceptionally tragic) – mainly rape, incest, serious threats to the pregnant woman’s health, and a high likelihood that the new baby would suffer from serious defects. (See this recent Gallup summary for some representative data.)
Still more revealingly: These public attitudes have been remarkably stable over time. At least three separate polls – shown in the aforementioned Gallup summary, by Pew, and by the National Opinion Research Center (NORC) – make this point emphatically.
And at least as important – NORC’s findings show that a sizable gap has existed between public support for the “tragic” exceptions to the right to abortion on the one hand (which have demonstrated at least 70 percent backing for the four decades examined), and other proposed exceptions (whose support generally has remained between 30 percent and 50 percent).
In turn, these legal and political considerations both create towering obstacles even to a Court now featuring a conservative majority overturning either the Roe or the Casey regimes. And least plausible of all is the wish-dream of abortion rights opponents and the nightmare of abortion rights supporters – that the Court bases such a reversal on cases brought deliberately in order to uphold the highly restrictive new state laws. For outlawing abortion even in the aftermath of rape and incest, for example, would seem the epitome of creating a Casey-violating undue burden on the fundamental right to abortion. The various “heartbeat” bills for their part can’t be squared with the Court’s determination in Roe and other decisions since that a fetus isn’t viable until long after the six weeks at which this function can first be detected.
Indeed, such laws repeatedly have been struck down in various courts, and the Supreme Court has refused to consider the two that reached it on appeal. And don’t think it’s a coincidence that the high court’s recent record tracks well with public opinion (including on the heartbeat bills, according to Kaiser Family Foundation and Quinnipiac University survey results presented in this sweeping summary of decades of abortion poll findings).
But couldn’t the Supreme Court’s new conservative majority decide the time is ripe to get rid of Roe and follow-on decisions? Not if it bears any resemblance to its predecessors since the New Deal era. For one of the seminal findings about the Court came back in 1960, in Harvard political scientist Robert G. McCloskey’s classic study, The American Supreme Court. As McCloskey argued compellingly, the Court is most successful when it pays attention to public opinion, and runs into its greatest troubles when it gets too far ahead of or too far behind these attitudes. If you’re skeptical, just think of the tumult that followed the pre-Civil War Dred Scott case and its invalidation of crucial pieces of New Deal legislation during the Great Depression.
None of this is to say that lots of thorny abortion-related decisions will continue to face Americans – like federal funding for Planned Parenthood and other organizations that provide a wide range of women’s health care services, including abortion services; and about what kinds of reproductive health services like birth control religious organizations should be required to provide for female employees in their health insurance plans. And few of them have generated enough polling evidence to identify consensus with any justifiable confidence.
But the broadest, most important abortion-related questions have been decided – especially in the court of public opinion. The procedure will remain a strongly protected Constitutional right early in pregnancy, and a more weakly protected right in later phases. Throughout pregnancies, this right will receive virtually absolute protection in genuinely traumatic circumstances, and be subjected by states to curbs on its availability that don’t “substantially” nullify it in practical terms — and that therefore should not be reflexively condemned as stepping stones to wide-ranging bans.
So abortion rights supporters need to give up on extending strong protections deep into pregnancy. And abortion rights opponents should forget about overturning Roe and Casey. It’s true that medical advances that keep pushing fetal survivability (if not viability without pervasive support) back closer to conception will one day resume adding fuel to the abortion debate fire. And public opinion is by no means set in stone. But for more than forty years since Roe, Americans collectively have been saying that the general abortion debate is over, and the courts have plainly agreed. It’s high time that politicians and activists across the spectrum got the message.