The nomination of Brett Kavanaugh to fill the Supreme Court vacancy left by Anthony Kennedy has touched off predictable outrage on the left — but especially vitriolic has been the reaction from the abortion movement, which is terrified of the possibility that Kavanaugh would be the fifth vote in favor of overturning the 1973 decision Roe v. Wade.
These activists are desperate to protect Roe’s instantiation of abortion rights, and they’ve been aided by centrist voices who have embraced a highly selective interpretation of stare decisis, claiming that preserving Roe in perpetuity is the key to achieving stability in the abortion debate — as if our current debate were anywhere close to settled.
Together — and armed with scurrilous statistics and stories — they’ve launched a doomed campaign to tank Kavanaugh’s nomination and defend the abortion-on-demand regime that was established in Roe and shored up by 1992’s Planned Parenthood v. Casey, the latter of which, incidentally, was co-authored by the retiring Kennedy.
The most common statistic that Democratic politicians and abortion groups have employed thus far is a poll showing that seven out of ten Americans say they support the decision in Roe. According to pro-choice logic — or lack thereof — this fact requires that the Senate refuse to confirm Kavanaugh, because he supposedly will vote to overturn Roe in contradiction of public opinion.
Cataloguing the problems with this argument presents a formidable challenge. Most fundamentally, public-opinion polls have no bearing whatsoever on the Supreme Court’s decision-making process. As the Court is not a legislature, it is not required to be — and in fact affirmatively should not be — responsive to public opinion on any issue, no matter how controversial. The job of the Court is to uphold the Constitution as written, a matter wholly separate from public sentiment on any given case. Even if Americans do agree with the outcome of Roe, this does not in any way necessitate that the Court let the decision stand.
Interestingly, the 70 percent talking point is also self-contradictory. If there is such a groundswell of public support for the abortion regime put in place by the majority decision in Roe, the legislative system would surely respond to that public pressure by ensuring that a similar regime was established by law rather than by judicial fiat — or even a constitutional amendment. If those wielding this data are so concerned about proper representation and respect for public opinion, they ought to prefer the democratic process to the highly undemocratic method of unelected justices’ imposing their reading of the Constitution on the entire country.
But even on its own terms, this statistic is largely useless as a barometer of public opinion on abortion. Crucially, it ignores the fact that most Americans don’t understand the specifics of Roe. A 2013 Pew Research Center poll, for example, found that only 62 percent of Americans even knew Roe had to do with abortion; among respondents under 30, that percentage fell to just 44 percent.
As a result, surveys that fail to explain Roe and the effects of its being overturned are highly suspect. If so many Americans are unaware that Roe dealt with abortion, imagine how many more must not know that, for example, a decision to overturn the precedent wouldn’t automatically make abortion illegal at the federal level.
Fewer still likely know the precise types of abortion regulations that the current framework prohibits. States are in theory allowed to restrict abortion after the point of “viability” — which can be as early as 22 weeks with current medical technology — but even then physicians are given broad latitude to perform abortions on the grounds that a woman’s physical or mental health is at stake.
The seven-in-ten figure is a smokescreen thrown up by pro-abortion zealots who would prefer not to delve into the real data on Americans’ abortion views.
What’s more, nearly all major public-opinion polls have found majority support for restrictions that are currently impermissible. According to Gallup’s latest round of abortion surveys, released in June, a slight majority of Americans (53 percent) say abortion should be legal in only a few cases or under no circumstances. Marist polling from this January, meanwhile, found that only 12 percent of Americans believe abortion should be available at any time during pregnancy and for any reason.
Marist also reports that 76 percent of Americans support significant abortion restrictions, including limiting abortion to the first three months of pregnancy, cases involving rape or incest, or to save the life of the mother. Six in ten Americans who call themselves pro-choice reported supporting these types of restrictions, as do 60 percent of Democrats and 80 percent of independents. More than 60 percent of respondents said they support a 20-week abortion ban, a restriction that was shot down in the Senate in January by Democratic politicians currently insisting that Roe should be upheld out of respect for public opinion.
The seven-in-ten figure, then, far from being proof that a vast majority of the public supports the abortion-rights regime put in place by Roe — and far from being a de facto condemnation of Kavanaugh on the assumption that he will oppose that regime — is in fact a smokescreen thrown up by pro-abortion zealots who would prefer not to delve into the real data on Americans’ abortion views. The limitations that most Americans favor are nearly impossible to implement under Roe and subsequent jurisprudence.
And that is precisely why Planned Parenthood, NARAL, the Center for Reproductive Rights, and a whole host of Democratic politicians continue to pound on the statistic that 70 percent of Americans think they support Roe: The rest of the data suggest they really don’t.