This week the Supreme Court agreed to review a 5th Circuit decision that overturned a Mississippi ban on elective abortions after 15 weeks of gestation. The decision suggests that a majority of justices may be ready to further limit the constitutional right announced in Roe v. Wade nearly half a century ago. Yesterday, meanwhile, Texas Gov. Gregg Abbott signed a bill that makes Mississippi's law look mild by comparison. S.B. 8 prohibits abortion when "the woman's unborn child has a detectable fetal heartbeat," which can happen as early as six weeks into a pregnancy.
Although both of these laws are clearly unconstitutional under the Court's abortion precedents, their practical consequences would be dramatically different. If it were allowed to take effect, the Mississippi law would ban only a small percentage of abortions, while the Texas law probably would ban most of them. The cutoff is therefore relevant not only to the constitutional analysis but also to the choices made by legislators. Those choices, in turn, are influenced not only by the leeway that the courts give legislators but by the views of their constituents, which vary widely from one part of the country to another.
New York Times columnist Linda Greenhouse suggests that pro-life politicians like Abbott will pay a price should the Supreme Court give them more freedom to restrict abortion. "If there is any good news to salvage from the court's announcement this week," she writes, "it is this: the free ride that anti-abortion politicians have enjoyed may be coming to a crashing end." If the Court allows laws like Mississippi's to stand, Greenfield says, politicians will no longer be able to "impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people's representatives from having to own their actions."
Given the wide regional variation in abortion views, the political peril that Greenfield perceives is largely illusory. If the Court loosens constitutional limits on abortion laws, legislators in states where public opinion supports new restrictions will enact them without worrying much about voter backlash. At the same time, most states will not impose new restrictions, mainly because neither legislators nor their constituents favor them.
The Mississippi law, which was enacted in 2018, would ban abortions after 15 weeks, "except in a medical emergency or in the case of a severe fetal abnormality." Similarly, the Texas law would allow the abortion of a fetus with a detectable heartbeat only in "a medical emergency." But the cutoff choice—15 vs. about six weeks—makes a huge difference.
According to data from the pro-choice Guttmacher Institute, about 95 percent of abortions are performed at 15 weeks or earlier, and nearly nine out of 10 are performed by the 12th week. But while two-thirds of aborted fetuses are eight weeks or younger, many women reach the six-week mark without realizing they are pregnant. In 2018, according to data collected by the Centers for Disease Control and Prevention, 60 percent of abortions were performed after six weeks.
What do Texans think about a law that would ban most abortions? A February poll by the University of Texas and The Texas Tribune found that 13 percent of the state's voters thought abortion should never be allowed, while 31 percent said "the law should permit abortion only in case of rape, incest or when the woman's life is in danger." In other words, 44 percent of Texas voters seem comfortable with a law at least as strict as the one Abbott signed yesterday: Although S.B. 8 does not include a "rape or incest" exception for abortions after six weeks or so, it would allow abortions prior to that cutoff without any special justification.
Beyond that, the picture is murkier. Twelve percent of respondents said abortion should be allowed "only after the need…has been clearly established." Although it's not clear what sort of "need" would qualify, that position seems inconsistent with a blanket ban on elective abortions after a particular stage of pregnancy. Finally, 38 percent of voters said "a woman should always be able to obtain an abortion as a matter of personal choice."
These results suggest that a plurality of Texas voters thinks the policy supported by Abbott and Republican legislators goes too far. But the number of Texans who favor severe restrictions is nearly as large, and they may be especially likely to cast votes based on candidates' abortion positions. A 2020 Gallup poll found that 30 percent of American adults who described themselves as pro-life said they would only vote for candidates who shared their views on abortion, compared to 19 percent of respondents who described themselves as pro-choice.
Unsurprisingly, Texans' abortion views are markedly different from those expressed by residents of blue states. According to a 2014 report from the Pew Research Center, 45 percent of Texans thought abortion should be legal in all or most cases. That figure was much higher in states such as California (57 percent), New Jersey (61 percent), New York (64 percent), Connecticut (67 percent), and Massachusetts (74 percent). But the liberal position was even less popular in some states than it was in Texas. It was favored by just 39 percent of adults in Louisiana, 38 percent in Arkansas, 37 percent in Alabama, 36 percent in Mississippi, and 35 percent in West Virginia.
Greenfield notes that "four nationwide polls" conducted last fall found that "more than 60 percent of registered or likely voters" did not want the Court to overturn Roe v. Wade. That's true. But polling on abortion policy reveals a less lopsided picture, and national surveys obscure large interstate differences in public opinion.
According to the most recent Gallup survey, 29 percent of Americans think abortion should be "legal under any circumstances," while 20 percent think it should be "illegal in all circumstances" (a position that is by no means universal among pro-life advocates, many of whom would allow exceptions in cases involving rape, incest, or a life-threatening danger to the mother). Meanwhile, 50 percent of respondents said abortion should be "legal only under certain circumstances"—a description that could cover a wide range of policies, including strict laws with just a few narrow exceptions and liberal laws that allow abortion in almost all cases.
More to the point, state politicians do not consult national polls when they calculate the likely electoral consequences of supporting stricter abortion laws. They want to know how their constituents are apt to react. Given the breakdown of opinion in Texas, and especially if you believe pro-life voters are more likely than pro-choice voters to make abortion a litmus test, supporting a law like S.B. 8 is not nearly as politically risky as Greenfield imagines.
In states where pro-life sentiment is stronger than in Texas, the political calculation is even more straightforward. In 2011, Greenfield notes, 58 percent of Mississippi voters opposed a ballot initiative that would have amended the state constitution to define person as "every human being from the moment of fertilization." But there is a lot of ground between that position, which presumably would rule out abortion in nearly all cases, and the Mississippi law the Court will consider next term, which would allow abortion in nearly all cases.
Even the new Texas law does not go as far as Mississippi's defeated Life Begins at the Moment of Fertilization Amendment, which was criticized even by some abortion opponents, who worried about possible unintended consequences. And three years after voters rejected that initiative, Pew found that 59 percent of Mississippi adults thought abortion should be illegal in all or most cases.
The Center for Reproductive Rights classifies 22 states as "hostile" to abortion rights, meaning legislators would be likely to severely restrict abortion (or at least try) when they are free to do so. Ten of those states already have "trigger" laws designed to take effect if Roe is overturned.
Yet most states will not impose new restrictions, mostly because neither voters nor legislators support them. (In some states, abortion rights are also protected by statute or by decisions applying state constitutions.) So in the absence of limits on legislation imposed by federal courts, access to abortion will be unimpeded in most of the country but severely restricted in many places.
Middlebury College economist Caitlin Knowles Myers projects that overturning Roe might reduce the annual number of abortions by about 14 percent. "A post-Roe United States isn't one in which abortion isn't legal at all," Myers told The New York Times. "It's one in which there's tremendous inequality in abortion access."