The Stark Gap Between the Supreme Court and the American Public on Abortion

Roe v. Wade may not have been the settled law judicial appointees promised it was, but it certainly has been settled public opinion for nearly 50 years. The Gallup Organization has been measuring public opinion about abortion since shortly after the 1973 Roe v Wade decision and not much has changed.

What's Public Opinion Got to Do With It? 

Some might ask, why does public opinion matter in a Supreme Court decision? Throughout the history of our democratic republic, public opinion has more often than not led the way in national policy making, regardless the branch of government, which is kind of the point of democracy. Most important in the opaque world of the judicial branch, it reinforces the legitimacy and trust in the court.

In a recent column Adam Liptak, who covers the Supreme Court for the New York Times, quoted Sandra Day O’Connor, wrote in her 2003 book, “The Majesty of Law”:

Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus.  

More broadly, Abraham Lincoln highlighted the importance of public sentiment during the Lincoln-Douglas debates saying,

In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed. 

The Lines Don't Cross (Same As It Ever Was)

The chart below depicts the longest-running Gallup Organization question, not only has it been settled public opinion, opinions have been remarkably stable as far back as the 1973 ruling. Public opinion has not shifted in a way that would suggest an underlying change in Americans' attitudes to support overturning Roe v. Wade, such as the shift we saw with gay marriage that resulted in the 2015 Obergefell v. Hodges decision.

In fact as of early May, the proportion of Americans saying ‘legal under any circumstances’ was at a 45-year high and ‘illegal in all cases’ dropped to 13 percent, one of the lowest levels over the same time period.

Question: Do you think abortions should be legal under any circumstances, legal only under certain circumstances or illegal in all circumstances?

As of early May, the proportion of Americans saying ‘legal under any circumstances’ was at a 45-year high and ‘illegal in all cases’ dropped to 13 percent, one of the lowest levels over the same time period.

Mind the Gap

Combining the results for ‘legal under any circumstances’ and ‘legal only under certain circumstances’ and comparing that to ‘illegal in all circumstances’ – which is the dominant theme in the most restrictive abortion laws in Oklahoma, Mississippi and many other Republican-controlled states – one thing becomes clear:

The vast gap between the two positions points to a Republican position on abortion that is not just out of step with public opinion, it’s diametrically opposed to it.

Support for “illegal in all circumstances” has never exceeded 23 percent and the average over 64 polls is 18 percent.

Support for Roe v Wade (opposition to overturning it) has never dipped below 50 percent in over 30 years, and support for overturning it has never been higher than 37 percent over the same timeframe. Again, the stability of opinion and the gap are noteworthy.

What's Next?

What happens when the Supreme Court of the United States is at odds with the court of public opinion? At the risk of sounding trite, we’re in murky, uncharted waters. Post Roe being overturned, public opinion is just beginning to come in showing significant movement in favor of Democrats. That said, we’re more than four months from the midterm elections – which in a “normal” setting, favor the party out of power – and there are a lot of other issues in the mix…the war in Ukraine, the economy, January 6th and more Supreme Court rulings on their way.

We’re going to put Lincoln’s belief in the importance of public sentiment to the test over the coming months. The truest measure of public opinion and the impact of the Supreme Court’s decision in overturning Roe v Wade will be on November 8, 2022.