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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Reaction to Likely SCOTUS Abortion Decision Depends on the Details

Like a lot of political and legal observers, I will be watching the U.S. Supreme Court closely in June or early July when it is expected to hand down a landmark decision on abortion. I wrote about how hard it is to anticipate the political fallout at New York:

As we await the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, generally regarded as the most serious threat to reproductive rights in 30 years, one big question is how the public will react to an outcome that significantly changes the legal status of abortion. With the two major political parties almost completely polarized on this issue, the reaction could have an immediate effect on the November midterm elections. Many Democrats think a decision overturning or significantly eroding Roe v. Wade might mobilize otherwise unenthusiastic pro-choice voters to show up at the polls (particularly the younger voters who often skip non-presidential elections). But many Republicans believe their own anti-abortion base might become eager to implement such a decision at the state level, boosting their midterm turnout as well.

A lot, of course, will depend on exactly what the Court majority does; a sweeping reversal of Roe would produce a different reaction than a more modest decision that makes it easier for states to enact abortion restrictions without completely eliminating a constitutional right to choose. But since the Mississippi law before the Supreme Court bans abortions after 15 weeks of pregnancy, the Wall Street Journal has done some fresh polling on that kind of across-the-board restriction. It found that by a 48-43 margin, voters support a “15-week ban with exceptions for the health of the mother.”

So what exactly does this tell us? “Exceptions for the health of the mother” are extremely controversial among anti-abortion activists. They argue that doctors will exploit such a “loophole” to write a “permission slip” for virtually anyone seeking an abortion on “mental health” grounds, if nothing else. The distinctions between exceptions for the health of the mother versus exceptions only to save the mother’s life got a lot of attention during a 2008 presidential-candidate debate between Barack Obama and John McCain:

“McCain, in response to Obama’s stated support for health exceptions [to a late-term abortion ban], said that such exceptions have ‘been stretched by the pro-abortion movement in America to mean almost anything’ and made air quotes in reference to the ‘health’ of the woman when describing Obama’s ‘extreme pro-abortion position.’”

But health exceptions are very popular. According to Gallup, in 2011, 82 percent of poll respondents favored “physical health” exceptions to hypothetical abortion bans, and 61 percent favored specific “mental health” exceptions. That’s relevant since neither the Mississippi nor the Texas laws have “health of the mother,” or for that matter, “rape and incest” exceptions (those have strong popular support as well; an AP-NORC poll in June of 2021 found that 84 percent of adults, and even 74 percent of Republicans, favored rape-incest exceptions to any abortion ban). If the Supreme Court upholds the Mississippi law (much less the wildly more restrictive Texas law), you can assume opponents will emphasize the lack of exceptions while happy supporters will downplay them.

If the Court find a way to validate Mississippi’s law (or other 15-week bans) without going further, it’s unlikely that activists on either side of the abortion debate will draw much attention to the fact that 93 percent of abortions occur within the first 13 weeks of pregnancy by the CDC’s estimate. For reproductive-rights activists, that statistic might induce a bit of complacency about the immediate impact of a change in constitutional law. For anti-abortion activists, it would dramatize how far they have to go to reach their goal of eliminating all abortions.

It’s commonly said that Americans are “conflicted” or “confused” about their opinions on laws affecting legal abortion. One public-opinion expert, FiveThirtyEight’s Amelia Thomson-DeVeaux, recently concluded that “many Americans just don’t like talking or thinking about abortion … They also don’t know a lot about the procedure or restrictions around it.” That may be the case for some people, but it’s also true, as Vox’s Sarah Kliff noted a number of years ago, that many people have deeply nuanced views that “[take] in all sorts of personal and circumstantial factors.” It’s not uncommon for people to oppose abortions on grounds of individual motivation (e.g., “convenience” or “recklessness about sex” that laws aren’t very good at addressing). At the same time, as public-opinion researcher Tresa Undem has reported, some abortion opponents want people seeking an abortion be treated with respect and given safe and affordable care:

“When it comes to ‘real life’ views on the issue — how people actually experience abortion — the numbers get even more intriguing. Among people who said abortion should only be legal in rare cases, 71 percent said they would give support to a close friend or family member who had an abortion, 69 percent said they want the experience of having an abortion to be nonjudgmental, 66 percent said they want the experience to be supportive, 64 percent want the experience to be affordable, and 59 percent want the experience to be without added burdens.”

“Yes, but —” could be a surprisingly common feeling about new abortion restrictions even among people who identify as “pro-life.”

The bottom line is that it is hard to predict how the public will react to the Dobbs decision. It will obviously depend on what exactly the Court does, along with what the majority signals could be coming in future decisions and the degree of alarm expressed in the inevitable dissents. But what may matter even more is how non-activists process the new landscape of abortion law and practice. They could surprise us all.



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