Jurisprudence

Abortion Bans Are Wildly Unpopular. How Do Republicans Keep Passing Them?

Protesters hold signs opposing the abortion ban: "TRUST WOMEN," "GOP QUIT STIRRING YOUR BASE WITH MY BODY," and more.
A crowd gathered in protest against recently passed abortion bans at the Georgia State Capitol in Atlanta on May 21.
Elijah Nouvelage/Getty Images

Alabama’s new abortion ban is wildly unpopular.

The law, which prohibits abortion from the moment of conception, is one of the most extreme attacks on Roe v. Wade in the country. It includes no exception for rape or incest. Republican legislators overwhelmingly endorsed it, and GOP Alabama Gov. Kay Ivey enthusiastically signed it into law. But a new poll shows that a supermajority of Americans wants the Supreme Court to invalidate the ban. It’s more evidence that the latest wave of abortion restrictions is the result of an antidemocratic crusade to impose the view of a militant right-wing minority.

HB 314, the Alabama bill, makes abortion a Class A felony, subjecting those who perform the procedure to up to 99 years in prison. It is a direct challenge to Roe, which protects a woman’s right to terminate a pregnancy before viability. A slew of recent polls have confirmed that such legislation is extremely unpopular throughout the country, while support for Roe remains high. A May CBS poll found that 67 percent of Americans believe the Supreme Court should uphold Roe, a finding consistent with a 2018 Wall Street Journal/NBC poll putting that number at 71 percent. A May Morning Consult/Politico poll found that 56 percent of Americans don’t think other states should pass laws like Alabama’s, and a May HuffPost/YouGov poll found that 57 percent of Americans disapprove of HB 314.

A new poll commissioned by Take Back the Courts and conducted by YouGov Blue found the opposition to the Alabama bill may have grown even stronger. Moreover, while HB 314 was designed to challenge Roe, most Americans want the courts to apply Roe and block the law. Sixty-three percent of Americans think the Supreme Court should strike down HB 314; just 25 percent do not want the court to invalidate it. Eighty-two percent of Democrats, 70 percent of independents, and 36 percent of Republicans think the Supreme Court should strike down the law. Just 48 percent of Republicans do not want the court to invalidate the law. Sixty-five percent of women and 61 percent of men think the court should block HB 314.

The poll was conducted between May 31 and June 3 and included 1,057 registered voters weighted to be representative by age, race and ethnicity, sex, education, census region, and 2016 vote choice. Its margin of error is +/−3.6 percent. Alissa Stollwerk, the director of YouGov Blue, told me that if SCOTUS allowed the law to stand, “we would face a constitutional crisis that would threaten the Supreme Court’s legitimacy.”

Why is HB 314 so incredibly unpopular? One possibility proposed by HuffPost’s Ariel Edwards-Levy in May is its lack of exceptions for rape and incest. She noted that the bill “managed to draw the disapproval” of a sizable proportion of respondents “even among groups that are generally anti–abortion rights.” A Gallup poll shows that 57 percent of Americans who describe themselves as “pro-life” still support abortion rights in the case of rape or incest. If you believe that abortion is literally murder, then it is, of course, morally consistent to oppose it under all circumstances; it does not make much ethical sense to assert that a fetus is a human who may nonetheless be murdered because of the circumstances under which it was conceived.

Moral consistency, however, is not always politically advantageous. That may be why a number of Republicans, including Sens. Mitt Romney, Tom Cotton, and Mitch McConnell, as well as President Donald Trump, have distanced themselves from the Alabama law. Other conservative-dominated states, though, have ignored this blowback: Shortly after Ivey signed HB 314, Louisiana Gov. John Bel Edwards and Missouri Gov. Mike Parson signed bills that banned abortion after six and eight weeks of pregnancy, respectively. Neither law included exceptions for rape or incest.

Edwards is a Democrat, but the vast majority of lawmakers who’ve championed these bills are Republicans. All 25 Alabama senators who voted for HB 314, for instance, were Republicans; they are also all white men. And here we have another hint as to how these bills get passed despite their broad unpopularity. Although more than 26 percent of Alabamans are black, there are just six black senators among the state Senate’s 35 lawmakers. That’s because Alabama’s legislature is flagrantly gerrymandered. In 2017, a federal district court struck down a number of legislative districts as illegal racial gerrymanders; GOP legislators responded by creating a partisan gerrymander that dilutes Democratic votes. Because race and partisan affiliation are closely linked in Alabama, the new maps preserved the dominance of white Republicans.

Indeed, Alabama legislators have spent the bulk of this decade mastering the art of voter suppression. They’ve been able to do so because the Supreme Court, by a 5–4 vote, gutted the Voting Rights Act in 2013, scrapping a provision that required historically racist jurisdictions to receive federal preclearance before altering their voting procedures. Less than 24 hours after that ruling, Alabama announced that it would begin requiring an ID to vote. Soon after, the state closed 31 driver’s license offices, mostly in majority-black counties. (They were reopened after a federal investigation found the closures had “a disparate and adverse impact on the basis of race.”) Since 2013, the state has also shuttered scores of polling places and engaged in mass voter purges. HB 314 is the outcome of these machinations, a bill passed by a legislature that is utterly unrepresentative of the population it ostensibly serves.

The task of stopping HB 314 now falls on the judiciary, and most Americans want to see the courts apply Roe and strike it down. But the Supreme Court’s current conservative majority has expressed hostility to the constitutional right to abortion access. If SCOTUS upholds HB 314 or legislation like it, it will severely damage its legitimacy. And it will do so not to respect genuine democratic will, but, as my colleague Lili Loofbourow put it, “to satisfy the beliefs of a minority.” GOP lawmakers have rigged the game so successfully that they can easily pass laws opposed by a supermajority of Americans. If the Supreme Court upheld these bills, it wouldn’t be deferring to the democratic process—it would be assenting to the tyranny of the minority.