The Volokh Conspiracy

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An Unexpected NYT Op-Ed: "A Hard but Real Compromise Is Possible on Abortion"

Public support for Roe v. Wade is difficult to measure because people don't understand what Roe, and Casey actually held.


Often, I see public polling that asks people whether they support Roe v. Wade. I find these surveys largely unhelpful, because people do not know what Roe, or Casey, actually held. Indeed, each year my students are surprised to learn how those two landmark decisions drew lines: Roe at the second trimester, Casey at the point of viability. I find far more meaningful those surveys that ask about restrictions at various stages of pregnancy: Six weeks? First trimester (12 weeks)? 15 weeks? Viability (~22 weeks)? Second trimester (24 weeks)? No restrictions at all? Generally, support for first trimester abortions is far greater than support for abortions after the first trimester.

Today, the New York Times published an op-ed (now called a "guest essay") that shines a light on these numbers, and offers a possible compromise on the issue.

First, the article explains that public polling on abortion has remained remarkably consistent over the past five decades, even as views on LGBT issues has shifted significantly:

The persistence of Roe's many foes is surprising if you see abortion as a culture-war issue, like L.G.B.T.Q. rights or sex education, where more Americans have embraced progressive views over time. If abortion was like these cultural issues, we would expect Americans to be far more in favor of abortion rights today than they were 50 years ago when rates of church attendance were higher and social attitudes were far more conservative, especially on issues related to gender and sex.

But that's not what happened. Although the Roman Catholic Church was key to propagating anti-abortion views in the early years of the abortion conflict, steep declines in church attendance have done little to depress pro-life sentiment. Surveys also show that Americans embraced more egalitarian gender attitudes over time without letting go of their opposition to abortion. Consequently, citizens on both sides of the issue are now far less divided by their position on gender roles than they were in the 1970s.

For these reasons, I don't find persuasive arguments that overruling Roe would lead to overruling Obergefell and Lawrence. Same-sex marriage has reached a broad level of consensus in a very short period of time. Indeed, even back in 2003, sodomy prosecutions were almost nonexistent. It was a strategic blunder for the Harris County District Attorney to even bring the case against Lawrence. Those cases are not going anywhere. Ditto for Loving and Griswold. Support for interracial marriage is at very high levels. And Estelle Griswold begged to be arrested in order to set up her test case six decades ago. The only substantive due process precedent on the chopping block would be Roe.

Second, many abortion providers decline to perform abortions after the first trimester:

While essentially all abortion providers outside Texas offer their services to women in the first 10 weeks of pregnancy, there is a sharp decline after that point. Roughly half of clinics don't offer abortion by Week 15, the limit set by Mississippi. At Week 24, fewer than 10 percent of clinics do so.

I've looked into how many clinics actually perform abortions in the ninth month, where legal. The number is very low, because those clinics do not always advertise such services.

Third, the article recounts the experience of one abortion provider who refused to perform abortions after the first trimester:

As a large body of research shows, providers usually dislike providing abortions at some point in the second trimester when the fetus becomes more recognizably human.

A good example is Dr. Susan Wicklund, a hero of the abortion-rights movement. In the face of death threats, she gained attention for going to work with a loaded revolver at the ready. Less noted was her decision to limit her practice to first-trimester abortions. Recalling her decision, Dr. Wicklund, who is now retired, wrote: ''Seeing an arm pulled through the vaginal canal was shocking. One of the nurses in the room escorted me out when the color left my face." She continued, "From that moment, I chose to limit my abortion practice to the first trimester: 14 weeks or less." In her willingness to face murderous abortion foes but not second- trimester abortions, Dr. Wicklund embodies our clashing impulses.

Roe drew the line at the second trimester. Casey drew the line at the point of viability. Perhaps Dobbs will move that line up to the first trimester.

I think it is entirely possible the Court finds that Mississippi's fifteen-week ban is valid, thus opening the door to prohibiting abortion after the first trimester. And, in the same term, the Court could find that Texas's six-week ban is unconstitutional. In many cases, women do not even know they are pregnant at that early juncture. The Court could find such an early line might even fail the rational basis test. But S.B. 8 would remain in effect for abortions after the first trimester. Still, this sort of compromise–don't say "split the baby"–would largely restore abortion laws to the democratic process.