The Corner

America’s Opinions on Abortion Aren’t Black and White, So Why Are Its Laws?

This week, Vox published an interesting reported analysis of a poll they commissioned on abortion that professes to be more surprising than it is: Most Americans, they find, don’t support an absolute right to abortion or want it to be illegal in all circumstances. This is not an original finding, to say the least, but Vox demonstrates it in some interesting ways — lots of Americans say they’re both pro-choice and pro-life, for instance, while lots of others, less surprisingly, say they’re neither.

The more interesting point raised by Vox’s data: America’s views on abortion may not be black and white, but its laws pretty much are.

It isn’t mentioned in the Vox article, but their poll found that, in line with other polling on the question, just 28 percent of Americans believe abortion should be legal in “almost all cases,” while 18 percent think it should be legal in “most,” and 50 percent of people think it should be totally illegal or only legal in cases of rape, abuse, or health problems.

And yet, the view of the 28 percent — one extreme of the debate — is essentially the law of the land. The details are a little bit complicated, but abortion is legal in almost all cases almost everywhere in America.

A similarly tiny number, 15 to 20 percent, of Americans think abortion should be legal in the third trimester of pregnancy. And yet, again, abortion is effectively legal for the entire third trimester in most states.

Chart via the Times

This is in large part thanks to Roe v. Wade and related cases, which have made it nearly impossible to make abortion illegal in most circumstances — certainly before the age of viability. Technically, it is constitutional to restrict abortion after the age of viability (now, around 22–24 weeks) if there are exceptions made for abortions in cases where the life or health of the mother is threatened. But practically, this is almost meaningless, because “health” can mean mental health, and testimony to or proof of the reasons for making an exception isn’t necessary. (You can see a description of how toothless the restriction is here. There are now 16 states that limit abortion after viability to cases where life or physical health is endangered, but that probably violates the nonsensical law of the land that is Roe v. Wade et al., and such abortions are accessible in other states.) This legal regime sets the United States, oddly, to the left of other wealthy countries on the issue — abortion is much more heavily restricted, generally, in Western Europe.

Vox’s reporter, Sarah Kliff, bemoans the fact that we don’t have discussions about places where we agree. Americans generally agree that there are a number of instances where women should be prohibited by law from having abortions, yet in those cases, abortions are still generally legal and accessible.

The gap between public opinion and abortion law can be a discussion all its own. But suffice it to say, when Republicans push for banning abortions after 20 weeks except in extremely limited circumstances — and certainly when they advocate more mild restrictions – they’re pushing for an idea with which most Americans, whatever their other feelings on abortion, agree. In a piece on how Americans agree about more abortion issues than we might expect, that might have borne mentioning.

Patrick Brennan was a senior communications official at the Department of Health and Human Services during the Trump administration and is former opinion editor of National Review Online.

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