If you tuned in to cable news or Twitter on Monday night or Tuesday, half of the talk, it seemed, was reporters, television hosts, and their more openly liberal interlocutors lamenting the impending loss of Roe v. Wade. Supposedly straight news types transposed their own views to public opinion, stating that the public supports Roe.
This is false. Roe is roundly castigated by those who know it, and if it’s supported by the public, that’s only because the public doesn’t know what it does.
“There is no ambivalence on abortion,” one pollster said, “as men and women dig in and say, ‘Hands off Roe v. Wade.’” Sure enough, 61 percent said they agree with Roe. Here’s the thing: Most voters don’t really understand what Roe did.
For instance, Roe prohibited states from passing abortion laws aimed at protecting unborn babies before 24 weeks. Quinnipiac polls show about half to 60 percent of the country would support a state or federal law barring abortion after 20 weeks.
On the constitutional matter, voters seem to reject Roe as well. Roe, again, took the matter of abortion totally out of the democratic process. There are some matters where our Constitution does that. For instance, states may not institute slavery or outlaw blasphemy. But only through absurd linguistic, philosophical, and legal contortions was the Roe court able to detect, emanating from the penumbras of the Bill of Rights, a right to abortion.
Most legal scholars who have spoken up on Roe contend it is horrific legal thinking. “As a matter of constitutional interpretation,” wrote Harry Blackmun’s clerk, Edward Lazarus, “even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”
And the public thinks state legislatures, not a handful of justices, should set abortion policy.
The pro-life Susan B. Anthony List polled voters in five states with competitive Senate races — Florida, Indiana, Missouri, North Dakota, and West Virginia — and asked them who should make the law. Voters in Florida, for instance, were asked, “Do you think that the U.S. Supreme Court should decide abortion policy for Florida, or do you think abortion policy should be decided by the people of Florida through their elected officials?”
In all states, including the swing state of Florida, voters preferred letting their own legislatures handle the issue. In North Dakota, the ratio was two to one.
Voters, then, seem to reject Roe’s expansive view of abortion rights and Roe’s removal of abortion from the democratic process. In short, most voters don’t support what Roe does in any regard.
If the Senate confirms Brett Kavanaugh, and then if the conservative majority of the Supreme Court overturns Roe, it will in fact be arranging abortion policy — legally and constitutionally — as most people seem to prefer.
This may explain why Democrats have begun to move toward Obamacare’s subsidies and away from Roe v. Wade as their main objection to Kavanaugh: They’re afraid the public might find out what Roe actually did.
