Im-Politic: Abortion Really Did Prevent a Red Wave, Part II

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abortion, Arizona, Associated Press, democracy, Democrats, Dobbs v. Jackson Women's Health Organization, economy, Edison Research, exit polls, Fox News, Im-Politic, inflation, midterm elections, midterms 2022, National Opinion Research Center, Nevada, New Hampshire, Pennsylvania, Republicans, Roe vs. Wade, Supreme Court

 As observed on Friday, U.S. midterm elections are really collections of state and local elections. So it’s crucially important to recognize that the exit polls on these races – including in the closely contested swing state races whose outcomes have been vital for determining control of Congress – show just as convincingly as the national poll results that mishandling the abortion issue was a huge mistake for Republicans.

In fact, as I first saw it weeks ago, even though large numbers of variables always influence all such votes, strong GOP support for the Supreme Court’s take-back of national abortion rights and for enacting sweeping bans in its wake, turned out to be a huge enough mistake to explain most of the Republican under-performance in swing states that as of this writing could cost them both the House and Senate.

As with the national level, the evidence for these propositions at the state level (the focus of this post) comes from two leading exit polls. We’ll start with the data from the survey conducted for the Associated Press (AP) and Fox News by the University of Chicago’s National Opinion Research Corporation, mainly because it looked at more individual states than the sounding by Edison Research for other major news networks, and because it contains state-level figures on that odd quirk pointed out in yesterday’s post: the tendency of many more respondents to brand abortion as the single most important factor behind than designated it as the most important issue facing the country.

That distinction – which I still find head-scratching – seems to account for much of the failure of so many pollsters to pick up on the significance of abortion in the weeks and months before Election Day. Opinion researchers evidently assumed that the wide lead over racked up by the economy over abortion when voters were asked about their top concerns would translate into an election completely dominated by economic issues, and therefore big Republican gains. But it didn’t, and the greater-than-expected influence of abortion on the actual voting looks sufficient to have swung the swing states in the Democrats’ favor.

Let’s kick off with Nevada, since incumbent Catherine Cortez Masto’s (typically narrow) win over Republican Paul Laxalt has just assured Democrats continued control of the Senate. When AP/Fox asked voters views on “the most important issue facing the country,” they responded almost identically like the country as a whole, giving “the economy and jobs” a majority (52 percent) and answering abortion just nine percent of the time.

Yet when it came to identifying “the single imost important factor” behind their vote, inflation’s margin over abortion was a much smaller 54 percent to 25 percent.

Moreover, it’s clear that voters motivated mainly by abortion were opposed to the overturning of the 1973 Roe vs Wade decision. In the AP/Fox survey, Nevadans took a “pro-choice” over a “pro-life” stance by a landslide-like 69 percent to 31 percent. And of that 69 percent, nearly half were “angry” about the Roe-overturning Dobbs ruling.

Voters in neighboring Arizona, where another loss helped kill GOP chances of capturing the Senate, gave the AP/Fox pollsters similar answers. They named the economy the country’s most important issue by 45 percent to 15 percent. But they said that their own vote was determined chiefly by inflation over abortion by a slimmer 50 percent to 24 percent count.

In addition, 62 percent of Arizona voters favored legalizing abortion in all or most cases with only 38 percent supporting a ban in all or most instances. And 35 percent of them described their views about the high court’s Dobbs ruling rescinding abortion rights as angry.

But this pattern isn’t simply a Mountain State phenomenon. In Pennsylvania, Republicans thought they had a great chance to hold a Senate seat because of Democratic candidate John Fetterman’s health problems and supposedly far-left views.

There again, a majority (51 percent) of voters said the economy was the country’s most important issue, and only 12 percent named abortion. But inflation beat abortion as a the key vote motivator by just 50 percent to 24 percent.

And in the Keystone State, too, voters supporting legalizing abortion in all or most cases by 65 percent to 35 percent, with those professing to be angry about Roe’s demise totaling 35 percent.

In New Hampshire, Republicans thought they could flip the Senate seat held by incumbent Maggie Hassan. On the “most important issue facing the country” question, they chose the economy over abortion by 50 percent to 13 percent. Yet on the “single most important factor” shaping their vote, that lead shrank to 48 percent for inflation compared with 23 percent for abortion.

In New Hampshire, “pro-choice” views topped “pro-life” views by a yawning 73 percent to 27 percent, and nearly half of all voters (47 percent) declared themselves angry about the Dobbs decision.

The Edison survey, again, didn’t ask the “most important issue facing the country” question in its exit poll. But it, too, found much more prominence given to abortion, and more heated opposition to the strike-down of broad abortion rights, than was apparent from the pre-election surveys.

In Nevada, Edison found that 36 percent of voters named inflation the “most important issue to your vote” – not overwhelmingly ahead of the 28 percent naming abortion. Nevadans backed broad access to abortion by 66 percent to 29 percent, and fully 35 percent were angered by the Dobbs ruling.

According to Edison, Arizonans prioritized inflation over abortion by a slim 36 percent to 32 percent. Broad abortion legality out-polled broad illegality by 63 percent to 35 percent, and those angered by the Supreme Court’s latest abortion decision totaled an impressive 40 percent.

In Pennsylvania, Edison researchers found that abortion actually beat out inflation as voters’ biggest motivator by 37 percent to 28 percent. Pennsylvanians took “pro-choice” positions over “pro-life” positions by a wide 62 percent to 34 percent, and 39 percent expressed anger over the Dobbs ruling.

Finally, in New Hampshire, Edison reported that inflation edged abortion by just 36 percent to 35 percent as the biggest factor behind voter decisions. “Pro-choice” backers exceeded their “pro-life” counterparts by 68 percent to 29 percent, and those angry due to the overturning of Roe vs Wade numbered a considerable 42 percent.

Incidentally, another major surprise in both sets of exit polls was the importance respondents attached to “the future of democracy in this country,” as AP/Fox called it. In nearly all the states examined above, this issue registered in the low- or mid-40 percent range as “the single most important factor” behind individuals’ votes.

But it’s difficult to understand whether Democrats or Republicans benefited on net, because members of both parties have expressed significant but significantly different sets of anxieties about the subject.

The numerous factors influencing midterm election results include national issues, state and local issues, candidate personalities, voter turnout, and changing demographics. Moreover, the lines separating these issues are rarely blindingly bright, or even close.

But the surprisingly great salience showed by abortion issues in the post-election exit polls, in contrast to the findings of pre-election polls, tells me that my hunch about the political impact of the Dobbs decision was well-founded. As was the case with no other issue, its announcement (on June 24) gave the Democrats a mobilizing cause when they had absolutely nothng going for them before. That’s why this gift looks like the single development most responsible for turning the Red Wave into a Red Trickle – at most.

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Im-Politic: Abortion Really Did Prevent a Red Wave, Part I

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2022 election, abortion, Associated Press, Dobbs v. Jackson Women's Health Organization, economy, Edison Research, exit polls, Fox News, Im-Politic, inflation, midterms 2022, National Opinion Research Center, NPR-Marist Poll, politics, polls, Red Wave, Republicans, Roe vs. Wade, Supreme Court

At the risk of blowing my own horn, I think it’s of more-than-usual interest to report the evidence that I’ve been proven right on my prediction that the Supreme Court’s decision to strike down abortion rights, and Republican support for such efforts, would be nothing but trouble for the GOP in this year’s mid-term elections.

Indeed, the exit polls – which, to be fair, are preliminary at this point – show that public anger at the Dobbs decision, and fears of it spurring a wave of draconian state-level and even federal abortion bans, influenced voting decisions nationally and in key swing states nearly as much as resentment over the state of the economy. And this development supported, in spades, my belief that whereas before Dobbs, Democrats had little or nothing going for them as the election approached, the Supreme Court gave them something. If anything, though, I underestimated how big this “something” would be, for it appears important enough to explain by itself why the “Red Wave” widely expected didn’t materialize.

Let’s start with with a survey conducted for some major broadcast and cable news networks by Edison Research. Practically up to Election Day, polls were showing that inflation was voters’ most pressing concern, with abortion trailing far behind. For example, this NPR/PBS/Marist College sounding from late October found the margin to be 36 percent to 14 percent among adults and registered voters, and 36 percent to 11 percent among those saying they’d “definitely vote” in the contest.

In addition, respondents believed that Republicans could control inflation better than Democrats by nearly two-to-one. No wonder so many in the GOP was so optimistic. 

But Edison’s exit poll found a much smaller margin for inflation’s paramount importance –  just 31 percent to 27 percent for abortion.

Findings like this, however, can be of only limited value, because Americans can be concerned about various issues for different reasons. So it was smart of Edison to publish a party breakdown. And with abortion ranking as “the most important issue for your vote” by 76 percent of Democrats but only 23 percent of Republicans, the Dobbs decision and its aftermath looked like definite political losers.

Backing up this conclusion: According to Edison, 37 percent of voters viewed the overturning of the 1973 Roe vs Wade high court decision establishing a privacy-grounded right to an abortion to some extent with “enthusiasm” or “satisfaction,” while 60 percent reacted with “dissatisfaction” or “anger.” And nearly two-thirds of that 60 percent were angry.

The second major exit poll is one conducted for the Associated Press and Fox News by the University of Chicago’s National Opinion Research Center. Its findings came with a major quirk. As with so many pre-election surveys, respondents ranked the “economy and jobs” as “the most important issue facing the country” by far. It claimed the top spot for 48 percent of those contacted versus just nine percent for abotion. In addition, respondents overwhelmingly (78 percent) thought the economy was in “not so good” or “poor” condition, and gave President Biden poor grades on handling this challenge.

But many more respondents (24 percent) called abortion “the single most important factor” behind their vote (versus 51 percent for the economy). And again, the decided (61 percent to 39 percent) backing for “a law guaranteeing access to legal abortion nationwide,” and the emotions registered over Roe’s demise (41 percent “happy” or ”satisfied,” 59 percent dissatisfied or angry, and 33 percent angry), demonstrate unmistakably how the issue cut politically against more powerfully than generally anticipated against Republicans. All the more so given how close so many key state and local elections were.   

And speaking of these state and local elections, since especially for matters like control of Congress, what counts most are those results (particularly for the supposed swing states where the GOP saw real promise of victory), not the nation-wide findings. As I’ll show tomorrow, the state and local results, too, all but clinch the case that the Dobbs ruling dashed those Republican hopes.

Im-Politic: A New, Promising but Still Flawed Form of Conservatism

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abortion, America First, China, Christianity, conservatism, crime, culture wars, Dobbs v. Jackson Women's Health Organization, education, family policy, foreign policy, identity politics, Im-Politic, Immigration, industrial policy, inflation, national conservatism, politics, religion, Roe vs. Wade, sovereignty, Supreme Court, Trade, wokeness

Don’t get me wrong. It’s not like I’m not grateful to have been invited to last week’s third National Conservatism Conference. The interest displayed by this crowd in economic policy ideas that depart dramatically from the right-of-center’s longstanding free market dogmatism was especially gratifying, and there was no shortage of thought-provoking and compelling speakers.

It’s just that my four days at the session left me unconvinced that National Conservatism as it presently seems to be constituted can create or contribute to a winning American political coalition. The main problem: Most of those spearheading the drive to establish National Conservatism as a major national force haven’t recognized which culture wars they should be fighting, and which they shouldn’t — and how this failure to discriminate is endangering other objectives that the movement (and others) rightly deem crucial.  In fact, unhappiness expressed to me by more than a few conference attendees with the stances on social and cultural issues taken by those putative leaders make me skeptical that it’s a movement yet to begin with – or can be if their vision prevails.

The economic dimension of national conservatism, at least judging by the presentations and hallway conversations, is not only politically astute; it’s substantively sound. All the speakers who addressed these issues – including such nationally prominent figures like Florida Governor Ron DeSantis, and the state’s Republican Senators Marco Rubio and Rick Scott (the event was held in Miami) supported smarter, more restrictive trade and other economic policies (especially toward China), reduced immigration inflows and genuine border security, and federal policies to promote strategically important industries and to ease economic pressures on the middle and working classes.

The same goes for National Conservatism’s critique of the overly, and often recklessly, adventurist foreign policies pursued by the mainstreams of both major political parties for decades.

But the conference organizers and another set of speakers seem wed to other goals and measures that are already backfiring among the American electorate and that, intriguingly, clash with other elements of their agenda. The most important by far were near-total opposition to abortion and a determination to tout the United States as a “Christian nation.”

The political folly of these priorities couldn’t be more obvious. As I’ve written, there’s long been a strong national consensus favoring the right to an abortion early-ish during a pregnancy and then favoring broad restrictions later on with significant exceptions (rape, incest, life of the mother, health of the mother). Indeed, that’s why comparable majorities have supported maintaining the abortion policy framework established by the Supreme Court’s 1973 Roe vs. Wade ruling – which was entirely consistent with that common sensical compromise. P.S. Contrary to the claims of the extreme pro-lifers on an off the Court, Roe gave states plenty of latitude to enact all manner of abortion curbs. (The other major misconception or falsehood surrounding Roe comes from the pro-choice movement: It never established an unfettered right to an abortion.)

If you’re skeptical, consider that the day that a draft of the Supreme Court’s eventual decision striking down Roe was leaked to the press (May 3), Republicans held a 4.1 percentage point lead in the RealClearPolitics.com average of polls gauging the public’s preference for control of Congress in November’s midterm elections. The latest figures show Democrats with a 1.1 percentage point lead in the so-called Generic Ballot.

It’s true that abortion isn’t the only reason, that the actual votes determining control of Congress aren’t cast nationally but state-by-state, and that Republicans hold enough built-in advantages in the Congressional map to keep their hopes of prevailing very much alive. But the polls also show that the Court’s Dobbs decision, the enactment of and efforts to enact near-abortion bans in Republican-run states that the ruling has permitted, and GOP talk of more such moves (including on the national level) is increasing Democrats’ interest in voting and boosting the party’s prospects. (See, e.g., here.) And not so coincidentally, Republican candidates and leaders all over the country are backing away from hard-line anti-abortion positions.

Adamant opposition to abortion in practically all circumstances also seems to clash violently with other stated National Conservative positions. For example, many speakers at the conference emphasized their support for individual liberty. But what about the right of women uninterested in becoming mothers to lead the lives they wish? Even if the unborn must indeed be deemed human life very early in pregnancies, should the wishes of those women count for absolutely nothing the minute they conceive – and simply because they failed to take adequate precautions, or because precautions taken failed? According to many, and possibly most, at the conference, the answer is “Yes.”

The repeated references to America as a Christian nation are just as problematic. For reasons like those suggested above, if that’s a rationale for insisting that U.S. policies conform with scriptural teachings (and Section 4 of this “Statement of Principles” by the movement’s leading lights certainly suggests this “Where a Christian majority exists” – i.e. in most of the country), that simply won’t wash with big majorities of voters. But the historical arguments advanced for this view don’t impress, either.

Sure, the Founding Fathers were Christians, and for the most part, observant Christians at that. But so what? The England they came from was overwhelmingly Christian. What else realistically could they be? For similar reasons, the Founders were ovewhelmingly white, too. Does that mean that America should be seen as a Caucasian nation?

And does Christian dogma really deserve much credit for the ideals that make up the American creed of freedom of expression and conscience and other major liberties for the individual; representative, accountable government; equal justice under the law; and the like? Clearly, in most of Christendom at the time (e.g., Russia, Spain, Germany) these notions were unknown or actively rejected. Instead, the great American experiment in self-government is rooted in specifically English thought and practice. And ironically, the major contribution made by Christianity that hasn’t been present outside Europe has been the faith’s willingness to leave big swathes of human life to secular institutions and authorities (as in Jesus’ admonition to “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.”)

Even worse, precisely because they’re so unpopular as well as intellectually feeble, National Conservatism’s focus on these particular culture wars is weakening the ability of the entire conservative movement (except the libertarians) to fight effectively the culture wars that must be fought – specifically, over woke school public curricula; the metastasis of left-wing authoritarianism in so many major, powerful American institutions; and the related spread of divisive identity politics.

I have nothing but respect for those National Conservatives I met – and other Americans – to declare that they’re less concerned with winning politically than with remaining true to their consciences. But their version of the perfect is shaping up as a powerful enemy of the good and formula for defeat – especially if they wish to contend, as they clearly do, in an arena that rightly values the art of the possible.

That’s why I was so encouraged to find out that many of those I met at the National Conservatism Conference agreed that hard-line anti-abortion stances and pro-Christian nation preaching need to be dropped if any of National Conservatism’s other worthy causes are to be advanced.

For me, nothing could be clearer than the following as a recipe for political victory and national well-being: focusing tightly in an America First-type way on  confining U.S. foreign policy to advancing and protecting U.S. sovereignty and core security (especially against foes like China), on taming inflation and building sustainable prosperity; on securing the border; on fighting crime; on removing propaganda from public schools; on preserving a strong voice for parents in their children’s education; and on resisting the intolerant woke and rigid identity politics ideologies being pushed by our most powerful institutions.

National Conservatism as it exists now is close to being on board. If it can go the extra mile, show better judgment politically, and accept a more inclusive, more historically accurate view of “Americanism,” I’ll be happy to join its ranks.

Im-Politic: Overturning Roe Could Backfire Big-Time on its Opponents

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2022 election, abortion, abortion rights, choice, Constitution, Democrats, election 2022, Im-Politic, midterms 2022, Republicans, Roe vs. Wade, Supreme Court

One of my favorite sayings has always been “Be careful what you wish for. You may get it.” And if life is remotely fair, it could well come back in spades to haunt supporters of the Supreme Court’s apparent decision to overturn the 1973 Roe v. Wade abortion ruling.

Before explaining why, I should briefly re-lay my cards on the table on abortion generally. As explained in this May, 2019 post I’ve supported Roe because of all the evidence that it conforms with a strong, consistent, public consensus in favor of a thoroughly reasonable compromise solution to the abortion dilemma. Specifically, the national default position is that abortion should be legal, but individual states, reflecting the beliefs of their populations, should be able to impose some restrictions.

In other words, Roe never established an unqualified right to abortion – because unless we’re talking about hermits, rights in human societies, including those enshrined in the Constitution, can never be unqualified. There are simply too many rights, and they too often collide with other rights and imperatives. So durable balances need to be struck, and from time to time, they need to be modified in light of changing circumstances.

They don’t make everyone happy, and they leave important inequities. But given the existentially heated and fiendishly complex nature of abortion, despite all the resulting and inevitable controversy stirred by the ruling and by the underlying issue, Roe succeeded on those crucial grounds. In everyday parlance, it was “good enough.”

At the same time, almost none of Roe’s opponents really seem to believe that there is an unqualified right to life, much less that it begins at conception. Certainly, that’s not an argument made by the leaked Supreme Court ruling. Nor is it claimed by the Mississippi abortion law that the Court is still considering, or by the even stricter new Oklahoma statutes.

The above description of Roe doesn’t take into account the argument that the decision fails by purely legal and Constitutional standards. Indeed, even leading pro-choice Constitutional experts have agreed with that judgment. But the underlying assumption that law stands clearly apart from politics can’t withstand serious scrutiny – and certainly not in any system of representative government. In such systems, legitimate laws can’t help but originate ultimately in that society’s values and culture, and politics is one indispensible method of figuring out how to enable those preferences to govern behavior and resolve disputes in mutually acceptable ways.

As I noted in the 2019 post (quoting a prominent historian of the Constitution), a crucial test that the Supreme Court must pass, (including for its own public support), is avoiding getting too far ahead of public opinion or trailing too far behind. That is, responsible justices will be exceedingly mindful of politics, its changes, and the trends underlying them. For the past half century, the Supreme Court justices who upheld Roe achieved that objective.

So assuming Justice Samuel Alito’s draft ruling stands, how is it likely to backfire on Roe opponents? For starters, they’ll need to start thinking seriously about a challenge that the 1973 ruling has enabled them to duck for decades, especially if Roe’s demise does significantly reduce the numbers of abortions.  The Roe opponens will need to deal with making sure that all the babies that aren’t aborted under the new regime have a real chance of leading satisfactory lives. After all, if you believe in the right to life, how can you neglect the quality of that life?

So unless there’s any chance that private adoption services will be able to place all the newborns with competent, caring parents (spoiler alert: there’s no chance), then the biological mothers and, when they stick around, fathers, will need a wide range of pubicly provided services and supports. In other words, Hello, Big Government. And those services and supports, which may have to be very long-lasting for the many new moms who are teens, won’t come cheap. So get ready for much higher taxes or deficit spending or some combination of the two.

For older new mothers who need to work, these supports will need to include paid family leave – whether by government or employers or some combination of the two. And if the goal is to help all the new children, this leave will need to extend for years – not just a few weeks. Moreover, this paid leave will also be needed even for many mothers who have working spouses or stable partners of some kind, unless these spouses or partners earn enough to pay all the household’s bills on their own.

Of course, there’s an alternative for the working mothers: Taxpayers spring for childcare. For as long as it’s needed. If, as is likely, Roe opponents don’t want governments handling this responsibility, they’ll need to admit many more immigrants to fill all the new positions private providers presumably would create. But no responsible Roe opponent would ever permit just anyone care for children, whether in government or for-profit or non-profit outfits. So extensive vetting and even training systems will need to be put into place, too.

In addition, for all the states that ban abortion very early in pregnancies, when many women aren’t even aware they’re pregnant, it’s only fair that they hand out accurate pregnancy test devices or pay for tests by physicians’ offices. That is, more expenses – and taxes or debt.

Finally, Roe opponents may well rue its demise this year on political grounds. It’s true that they may be able to fire up their voters to turn out to defend anti-Roe candidates in this year’s midterm Congressional elections as Roe supporters are to mobilize theirs on behalf of office-seekers pledged to codify it as federal law, and/or support nominated judges likely to try restoring Roe or at least its protections.

But it’s also true that whereas before yesterday, Roe supporters (who tend to be Democrats and Democratic leaners, just as opponents trend the opposite way) had almost no issues with which they could inspire their voters (because of the Biden administration’s failures on so many fronts), now they may have one issue that can help close the so-called enthusiasm gap and improve their performance this fall. So that shapes up as a net loss for Roe opponents and the GOP overall.

The opponents’ losses could be even worse, however, since (as shown by the poll linked above) Roe is pretty popular with the moderate Republicans who deserted the party in the 2020 presidential election and helped Joe Biden win the White House. They may not be incredibly numerous, but by definition they’re often found in many of the swing districts and states that could greatly determines which party controls the House and Senate. (It’s their presence that makes these precincts up for grabs – when it’s not the presence of moderate Democrats.)

Nonetheless, it’s also distinctly possible that such a Roe effect may not materialize, or flare briefly and then fade between now and November. (That’s clearly been the case so far for the January 6 Capitol riot, to my surprise.)  Further, abortion won’t be the only issue on voters’ minds, and any number of events could intervene in the weeks and months ahead to alter the political odds. 

Whatever the political impact, however, the nation seems fated to deal with some serious and potentially tragic real world fall-out from the Supreme Court’s seeming plans for Roe, unless the justices reverse course. Is it too much to hope that they remember another of my favorite expressions:  “If it ain’t broke, don’t fix it”?              

Im-Politic: Why the Crucial Abortion Debates are (Long) Over

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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.