Next week, the Supreme Court will hear arguments in a case that could overturn Roe v. Wade. The suit, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law that bans most abortions after 15 weeks of pregnancy, about two months earlier than states can currently prohibit abortions under Roe. The statute’s defenders have suggested that a 15-week ban would enjoy wide public backing. In an amicus brief, for instance, 44 senators and 184 members of the House assured the justices that “two-thirds or more of Americans support limiting abortion after twelve weeks’ gestation.” And some scholars have argued in op-eds that a “moderate ruling,” upholding the Mississippi law and setting a 15-week limit, could establish a “new equilibrium.”
Don’t count on it. Many Americans would support a law like Mississippi’s, but they’re not a majority. If the court uses this case to overturn Roe, it’s likely to trigger a voter backlash next year.
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The Mississippi case has been overshadowed in recent months by Texas’ law banning abortion after six weeks. For technical reasons, the court hasn’t yet blocked the Texas law. But politically, it’s a nonstarter. Its bizarre enforcement mechanism—authorizing private citizens to sue anyone who facilitates an abortion—is overwhelmingly unpopular. And even if that mechanism weren’t involved, most Americans think a six-week limit is too severe. They reject it even when they’re told that by six to eight weeks “a fetal heartbeat is detectable.”
A ban at 15 weeks is easier to sell. When people are asked about abortion at various stages of pregnancy, the percentage who think it should be illegal rises, cumulatively, as the number of weeks or months increases. In Economist/YouGov surveys, about 20 percent of respondents think abortions should be illegal from conception. At six weeks, the percentage goes up to nearly 40. At three months, it rises above 50. That last jump—about 14 percentage points—makes a huge difference.
A similar gap separates the Mississippi law from the Texas law. In Economist/YouGov polls, the Texas law loses by about 13 points, but respondents are almost evenly divided on the Mississippi law, with support and opposition in the low 40s. In a Yahoo News/YouGov poll, respondents opposed the Texas law 50 percent to 33 percent, but they tilted in favor of the Mississippi law 39 percent to 33 percent. A Marquette University Law School poll found almost the same gap, with respondents in favor of upholding a 15-week ban 40 percent to 34 percent.
If you look closely at these numbers, however, you’ll see something missing. While more than 50 percent of Americans say abortion should be illegal at three months, only about 40 percent endorse Mississippi’s ban at 15 weeks—which is later than three months. A crucial segment of the public, about 10 percent to 15 percent, flinches when the question stops being hypothetical and gets real. Why?
The simplest explanation is that many Americans are uncomfortable with banning abortion, even when they are personally opposed to it. They don’t like the procedure, but they don’t like the government getting involved either. Two weeks ago, in a Washington Post/ABC News poll, 75 percent of voters said abortion decisions should be “left to the woman and her doctor” rather than “regulated by law.” In a Data for Progress survey, 66 percent of likely voters chose a pro-choice statement—“The government should not interfere in personal matters like reproductive rights”—while 26 percent chose the pro-life alternative: “The government should be able to make decisions about reproductive rights, especially when it involves protecting the sanctity of human life.” In a Navigator poll, 33 percent of voters identified themselves as pro-life, but 60 percent identified themselves as pro-choice.
The Navigator poll, taken in September, illustrates the power of anti-abortion, pro-choice voters. When voters were asked to choose among three statements, 23 percent picked the one that said “abortion is morally wrong and should be illegal.” Thirty-two percent chose the opposite statement: that “abortion is morally acceptable and should be legal.” But 38 percent chose the third, hybrid option: “I am personally against abortion for myself and my family, but I don’t believe government should prevent a woman from making that decision for herself.”
This ambivalent segment of the electorate probably includes many people who say abortion should be illegal after three months in theory, but who don’t support the Mississippi law. Anti-abortion, pro-choice voters often drift back and forth, depending on the political climate. Right now—possibly because the Supreme Court is stacked with conservative justices—they’re leaning to the pro-choice side. In a Quinnipiac University poll completed last week, more respondents said the court should make it easier to get an abortion (45 percent) than said the court should make it harder (33 percent). In the Post/ABC poll, 57 percent of voters opposed state legislation that would make it “more difficult for abortion clinics to operate there”; only 36 percent supported such legislation.
If the justices expect the public to embrace a 15-week limit, they may be in for an unpleasant surprise. In every recent survey, voters support Roe and reject the idea of overturning it. The numbers aren’t close: The anti-Roe side ranges from 26 percent to 32 percent, while the pro-Roe side ranges from 50 percent to 65 percent. And when the Mississippi law is pitted against Roe, the law loses. In the Yahoo News poll, when respondents were asked about “a Mississippi law that bans most abortions after 15 weeks, or about 3½ months,” they favored it, 39 percent to 33 percent. But when the poll presented an alternative—“The current law under Roe v. Wade forbids states from banning all abortions before around six months of pregnancy when the fetus can survive outside the womb”—respondents turned against the 15-week limit. Only 30 percent said the court “should uphold the Mississippi law and allow similar abortion bans elsewhere.” Forty-one percent chose the alternative statement: “The Supreme Court should strike down the Mississippi law and preserve Roe v. Wade.”
In the past, when the court has flirted with overturning Roe, that threat has motivated pro-choice voters to punish Republicans at the ballot box. A survey two months ago, conducted by Lake Research and Emerson College Polling, suggests that the same thing might happen next year if the court rules against Roe. Forty-five percent of Republicans and 51 percent of pro-life respondents said that they’d be more interested in voting in 2022 if the justices were to overturn Roe. But among Democrats and pro-choice respondents, the numbers were significantly higher: 66 percent and 69 percent, respectively. Democrats and pro-choicers also held a 15-point advantage among respondents who said they’d be “much” more interested in voting. (Lake Research is a pro-choice firm, but its sample in this survey was by some measures more pro-life than any other pollster’s.)
The justices might decide to get rid of Roe, irrespective of politics, because they believe it’s not grounded in the Constitution. Some of them might also feel that a 15-week limit on abortions is morally reasonable. But if they think that switching from 24 weeks to 15 weeks would bring Americans closer to consensus, they’re mistaken. There would be just as much unrest, with one difference: The political energy would shift to the left.
