With President Trump’s nomination of Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court, abortion has once again returned to the forefront of the national political debate. Conservatives and liberals are alternately excited and enraged by the prospect of the court securing the pivotal fifth vote needed to overturn Roe v. Wade, the 1973 decision discovering a constitutional right to abortion.
The Left’s case against Roe relies in part on the perception that the ruling enjoys broad public support. Simply put, abortion-rights advocates argue that the law shouldn’t be overturned because most people want to keep it.
And it’s true that in most polls a majority of respondents say they want to see the decision upheld. For instance, a Quinnipiac University national poll published last week found that 63 percent of respondents answered “yes” to the following question: “In general, do you agree or disagree with the 1973 Roe v. Wade Supreme Court decision that established a woman’s right to an abortion?”
But there’s a big problem with this and almost all polling on Roe: Pollsters almost never provide the necessary context to help respondents understand the decision.
Americans remain ignorant about what that court decision did, and what would happen if it were overturned. Abortion-rights advocates are more than happy to keep the public in the dark. They often create the impression that if Roe were overturned, all abortions would be outlawed, and we’d return to the days of back-alley abortions.
The truth is far less dramatic, not to mention more democratic and constitutional.
If Roe were overturned, abortion law would revert to the states to decide, which would make the procedure legal in some states and illegal in others. In liberal states such as California and New York, abortion would likely be generally available, just like it is now. In pro-life states such as Tennessee and South Dakota, it would generally be much more restricted, just like it is now.
The public by and large doesn’t know this. A 2013 Pew Forum Study found that nearly four in 10 Americans believe Roe is a court decision about something other than abortion. A majority of people under 30 doesn’t know that Roe dealt with abortion — this is the generation that’s had Google at their fingertips for most of their lives.
And a national survey by the Ethics and Public Policy Center and the Judicial Confirmation Network found that when people were simply asked whether they supported overturning Roe, 55 percent said ‘no’ and 34 percent said ‘yes.’
But those numbers changed when respondents were informed that Roe prohibited states from limiting abortion during the first six months of pregnancy and that if Roe were overturned, states could pass laws to permit or prohibit the practice as they saw fit. The percentage that supported Roe dropped 7 points, to 48 percent, while the share that wanted it overturned increased to 43 percent.
Ultimately, Roe’s survival shouldn’t be determined by public opinion but rather by its constitutional merits, which is where the decision really runs into problems. Even many liberal legal scholars have harshly criticized the decision as having no basis in the Constitution.
I believe the Constitution contains a right to life (specifically in the 14th Amendment), and, if Roe is overturned, I hope every state would eventually pass pro-life laws.
I also believe that pro-lifers’ ultimate goal should be the creation of a society in which every unborn child is protected under the law and welcomed into the world, a society in which the destruction of an innocent unborn child is not just illegal but also unthinkable.
Overturning Roe v. Wade is a critical first step to creating such a society. But before Roe can be overturned, it must first be understood.
Gary Bauer is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of American Values and chairman of Campaign for Working Families. He ran for the Republican presidential nomination in 2000.
