We’ve heard it a million times since Justice Anthony Kennedy announced his retirement. We’ll hear it a hundred million more between now and the end of confirmation hearings for whomever is designated to fill the vacant spot on the Supreme Court: “Americans support Roe v. Wade.”
The poll numbers seem to bear this out, at least if one refuses to do any critical analysis of what the poll question and its answer actually reveals. The reason such a poll question is being cited, of course, is to put the new SCOTUS nominee—someone many believe may put Roe in serious danger of being overturned—in the context of a hostile public who wouldn’t approve of such a development.
But can answers to a poll question like “Do you support Roe v. Wade?” demonstrate that the public supports the abortion policy Roe requires? Not at all. Here are seven reasons it is deeply misleading to claim Americans support Roe v. Wade.
1. Many Americans Know Little About Roe
A high percentage of Americans don’t know much about what Roe says or does. In a Pew Forum study done on the fortieth anniversary of Roe, we learned that 38 percent of Americans think Roe is a decision about something other than abortion. For those younger than 30 years old, this number rises to a shocking 56 percent.
Furthermore, of those who know that Roe was about abortion, many don’t know even the most basic details of the case. Many wrongly believe, for instance, that overturning Roe would make abortion flatly illegal instead of merely returning the issue to a legislative process for states to decide.
2. Many Abortion Activists Don’t Like Roe
Supreme Court Justice Ruth Bader Ginsburg, speaking at the University of Chicago, said Roe was a disappointment because it focused on privacy rather than on advancing women’s rights. Linda Greenhouse, an abortion-rights activist journalist who covered the Supreme Court for The New York Times, claims of Roe that “the seven middle-aged to elderly men in the majority certainly didn’t think they were making a statement about women’s rights.” Rather, she said, authentically female concerns were “nearly absent from the opinion.”
Justice Harry Blackmun, writing for the majority in the Roe decision, was a former lawyer for the Mayo Clinic. Greenhouse says he wrote his decision with a focus on the concerns of male physicians.
Peter Singer, perhaps the world’s most influential living philosopher, is well-known for being a pro-choice activist—not only for abortion, but also infanticide. But Singer has argued that abortion advancement would be better served in the United States if Roe were overturned and a legislative process unfolded along the lines of what has happened in most other developed countries.
3. Roe Is No Longer Roe. It Is Planned Parenthood v. Casey
From a certain point of view, Roe has already been overturned. Even pro-choice legal scholars find it difficult to defend Roe as legal reasoning. Led by Kennedy and Sandra Day O’Connor (both Republican appointees), a pro-choice SCOTUS majority tried to save itself from Roe in 1992 by offering a substantially different defense of abortion rights.
Caitlin W. Bormann argued in the William and Mary Journal of Women and the Law that Casey “established a new, less protective, constitutional standard for abortion restrictions.” It focused, not on defending privacy as Roe did, but on insisting abortion restrictions didn’t impose an “undue burden” on women.
This standard, Bormann says, “immediately enabled states to invade women’s privacy in new ways.” So a poll asking about Roe is actually asking the wrong question. A new SCOTUS justice might overturn the Kennedy-O’Connor compromise in Casey, but he or she wouldn’t be overturning Roe.
4. Americans Support Abortion Restrictions Roe Banned
Most Americans support gestational abortion restrictions that Roe and Casey have made unconstitutional. In striking down an Indiana abortion law, the Seventh Circuit Court of Appeals articulated the legal standard after Roe/Casey. Indiana’s law, they said, violated “well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability [24 weeks], and that the State may not prohibit a woman from exercising that right for any reason.”
But most Americans want abortion restricted well before viability. More than six in ten Americans, for instance, want abortion banned after 20 weeks. Last month Gallup asked Americans about their abortion views based on trimester, and found that only 28 percent wanted abortion to be legal during the second three months of pregnancy. Interestingly, this mirrors the policies of most European countries, which ban abortion after the early part of the second trimester.
The views of the American people on when in pregnancy abortion should be illegal are dramatically out of step with what Roe and Casey require.
5. Coat-Hanger Abortion Stories Are Mostly Fables
Horrific stories about blood in the streets from coat-hanger abortions are not borne out by the evidence. Sure as death and taxes, as soon as public discussion moves toward overturning Roe, a story about women dying from illegal abortions is not far behind. Many who claim to support Roe have this as a central and genuine concern, but, happily, the actual facts should make them feel more comfortable.
By the late 1950s, social scientists and public health officials had determined that illegal abortions in the United States were not more dangerous than legal abortions. Improvements in medical technology, plus the fact that most illegal abortions were done by licensed physicians in a clinic (not in a back alley), were found to be the main reasons.
Comparisons of a possible post-Roe/Casey United States to the results of banning abortion in a developing country with poor medical technology are either ignorant or disingenuous. Indeed, developed countries like Ireland and Chile, which have banned almost all abortions, have better health outcomes for women than do similar but abortion-permissive countries. Chile actually saw health outcomes for women improve when they dramatically restricted abortion.
When women in the United States are denied abortions because of gestational age limits, the overwhelming majority don’t get illegal abortions or go elsewhere for abortions. Indeed, a recent study found that about 80 percent of them bring their pregnancies to term and only 5 percent end up regretting not having the abortion.
In his book “Aborting America,” former NARAL founder Bernard Nathanson admitted that the early abortion rights movement simply fabricated the numbers of women dying from illegal abortion to further their political goals. Little has changed with the contemporary abortion rights movement.
6. Many Pro-Lifers Support Exceptions for Hard Cases
Pro-lifers want abortion to be legal to save the mother’s life and in cases when the pregnancy is the result of sexual violence. We often hear of women being left to die from problematic pregnancies and victims of sexual violence being forced to carry their rapist’s child. Would this be the result of abortion policy going back to the states? It’s highly unlikely.
Even if pro-lifers would be crafting public policy all by themselves (also highly unlikely), Gallup found than seven in ten want abortion legal to save the mother’s life and six in ten want abortion to be legal when the pregnancy is a result of rape. Even in states where abortion is likely to be “illegal” after an overturn of Roe/Casey, they will almost certainly have these important exceptions.
People who know these exceptions are likely to be in place are far more likely to be more comfortable with much higher abortion restrictions. Interestingly, the same Gallup poll found that 52 percent of people who identify as pro-abortion want abortion to be illegal by the second trimester.
7. Americans Don’t Like Abortion of Disabled Children
Americans are deeply uncomfortable with the kinds of abortions, currently protected by Roe and Casey, that target the disabled. About seven in ten prenatal children thought to have Down syndrome are killed via abortion, even though people with Down’s are happier than folks without it.
Given these facts, it is no surprise that Americans hate abortion that targets people with Down syndrome. Indeed, while 84 percent of pro-lifers think aborting a child with Down’s is morally wrong, nearly half of people who identity as pro-choice feel the same way. Why wouldn’t they? In any other context, violently singling out disabled people would be a federal hate crime.
Yet an Indiana law specifically designed to protect this vulnerable population from discrimination was struck down, as we saw above, precisely because Roe/Casey requires abortion to be unrestricted before viability. Once again, this puts Roe/Casey far afield from the views of the American people.
If we want an honest accounting of what the American people think about U.S. abortion policy in the debate over the new SCOTUS nominee, the coming weeks and months should see media and others in public discourse doing much better than lazily citing a poll showing support for Roe v. Wade. They must instead dive into the facts about what Americans believe about abortion, and how they compare with what Roe/Casey has done to U.S. abortion policy.
An honest accounting will find that the Supreme Court has given the United states one of the most extreme abortion policies in the world, and that the American people are ready to have policies that actually reflect what they believe about abortion.