What Are The Stakes Of The Supreme Court’s Decision To Hear A Case That Challenges Roe v. Wade?

What Are The Stakes Of The Supreme Court’s Decision To Hear A Case That Challenges Roe v. Wade?

Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.


sarah (Sarah Frostenson, politics editor): On Monday, the Supreme Court agreed to hear a case that directly challenges the constitutional right to abortion as established by Roe v. Wade in 1973.

The case, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law that seeks to ban most abortions after 15 weeks of pregnancy, which is about two months earlier than Roe and subsequent rulings, such as Planned Parenthood v. Casey, allow. Notably, Casey, the 1992 decision that has largely superseded Roe, does give states the right to regulate abortion, but only after the point of fetal viability — or the point at which a fetus can survive outside the womb, roughly 23 or 24 weeks. 

The Supreme Court has decided a number of issues relating to procedures and regulations surrounding abortion — as recently as the last term, in fact — but this case is notable in that it is the first case, in a long time, that will be faced with the question of when abortion itself is constitutionally protected. 

The stakes, simply put, are high, and in the spotlight, once again, is the question of how aggressively the court’s new six-justice conservative majority will act to dismantle abortion rights.

Let’s start with the stakes of this latest challenge, then discuss where Americans stand on abortion, and finally, wrap with the politics of this, as the court’s decision will likely come next summer in the lead up to the 2022 midterm elections.

To start, the stakes.

meredithconroy (Meredith Conroy, political science professor at California State University, San Bernardino, and FiveThirtyEight contributor): As FiveThirtyEight’s Amelia Thomson-DeVeaux has written, states have passed hundreds of restrictions in the last decade that have made it harder to get an abortion, leaving a patchwork of abortion access that has disproportionately affected rural women, poor women and women of color

Women’s access to abortion already depends a lot on where they live. But the stakes in this case are that if the court upholds the law, the most vulnerable women, who can’t travel long distances for an abortion or afford one, will be the ones most affected.

alex (Alex Samuels, politics reporter): The stakes are huge here. The Supreme Court is essentially debating if all state laws that ban pre-viability abortions are unconstitutional.

sarah: A lot of analyses are emphasizing the makeup of the court and the role it plays now that there is a six-justice conservative majority — and I certainly don’t mean to downplay the stakes, the constitutionality of abortion is on the table — but one thing to keep in mind is the fact that the court has a conservative majority means they’ll take up more cases that could move the law fundamentally to the right.

Amelia wrote about this last year during the nomination process for Justice Amy Coney Barrett, but Supreme Court legal experts stressed to us then that the types of cases the court will hear will dramatically change. In other words, even if it’s still an open question as to how the court will approach this case, the fact that they’re choosing to tackle it now shouldn’t be that much of a surprise. Conservative legal advocates want to test how far this court is willing to go.

meredithconroy: It’s interesting, too, that the court might leave abortion access up to the states at a time when states are electing more women. One might think that more elected women bodes well for those in support of abortion-rights, but political science research has found that electing more women puts this issue on the agenda more often, and for Republican women that means more anti-abortion bills, as the gender gap on abortion is a bit of a myth.

alex: And considering, Meredith, that a majority of state legislatures are Republican-controlled, that doesn’t that bode well for abortion access, right?

meredithconroy: Ya, exactly. Republican-controlled legislatures + more elected Republican women is a formula for more anti-abortion legislation.

alex: And as you were getting at, Meredith, on the lack of a gender gap on abortion, the Pew Research Center found recently a pretty modest gender divide: 56 percent of men and 62 percent of women say abortion should be legal in at least most cases.

The bigger gap was a partisan one: 80 percent of Democratic women and 79 percent of Democratic men say abortion should be legal in all or most cases; on the flip side, just 32 percent of Republican men and 39 percent of Republican women feel the same way.

meredithconroy: But there is a gap in how important men and women find the issue of abortion — women care a lot more about it than men.

sarah: A third of Republicans saying abortion should be legal in all or most cases seems sizable, though. I realize there’s a clear partisan gap here, but that pushes back against this being a super clear-cut issue, right, Alex?  

alex: Oh for sure, Sarah. One thing that struck me about this piece from my former FiveThirtyEight colleague Perry Bacon Jr. is that abortion isn’t as black and white of an issue as politics might make it seem.

For example, Gallup found that Americans are united in opposing abortion during the second and third-trimesters of pregnancy, the latter of which is extremely rare. According to their polling on the topic — which was last conducted in May 2018 — only 13 percent of respondents said abortion should be legal in the last three months of pregnancy (this compares to 28 percent who said it should be legal in the second trimester and 60 percent who should be legal in the first trimester.)

The Mississippi law, though, falls into a weird, gray zone in that it seeks to impose restrictions at 15 weeks, which does fall in the second trimester, but still challenges what Roe established as fetal viability, or the point at which a fetus can survive outside the womb. Nonetheless, the polling suggests some Americans might be OK with states having the ability to impose restrictions starting at 15 weeks.

geoffrey.skelley (Geoffrey Skelley, elections analyst): Yeah, for a long time now, a sizable majority of Americans have said they favor some access to abortion. For instance, in 2020, Gallup found that 79 percent of Americans wanted abortion to be legal in at least some circumstances.

Now, only 29 percent said they wanted abortion to be legal in any situation, but another 50 percent favored it in some cases. And on the question of whether to overturn Roe v. Wade decision, the majority of Americans want to keep it. Recent polls have found around 60 percent either agree with Roe or oppose overturning it

meredithconroy: Like Sarah mentioned, it’s interesting that this court decided to hear this case, now. You need only four justices to agree to hear a case and it seems likely that at least three of the justices will side with Mississippi (Justices Clarence Thomas, Samuel Alito and Neil Gorsuch), and probably Barrett, as well. 

That means Justice Brett Kavanaugh could be the likely deciding vote, and that’s significant given how much his assumed position on Roe influenced support for his nomination. Consider the number of times Sen. Susan Collins went to bat for Kavanaugh when she defended her choice to vote for him because he would not be open to undoing Roe, as a “settled law.”   

sarah: Right, Meredith, given how Roberts ruled on the abortion case last year — he joined the liberal justices — it’s probably a stretch to think he will side with the conservative justices this time (even though, Roberts made it clear in that case that he thinks the underlying decision was wrong). It’s just that, I think, as chief justice, Roberts cares more about consistency in the court’s rulings and its image. 

Barrett, as you get at, though, has a pretty clear perspective on abortion and while she dodged answering how she’d rule on abortion in her confirmation hearings, she did admit that she doesn’t view Roe as a “super-precedent” — or a ruling so enshrined in American law that it can’t be overturned.

Let’s talk a little about the politics of this, though.

The justices will most likely hear this case next term, with a decision next summer, as it’s bound to be a contentious, high-profile case, and the court’s most controversial decisions often come at the end of the term in June. 

What do we know about the Supreme Court as a motivating factor for voters? The court has long been thought of as something that drives Republican voters, but not necessarily Democratic voters. Is that changing?

alex: Well, at least on the question of the court and abortion it does seem as if it might motivate be starting to motivate Democrats more. Take what FiveThirtyEight contributor Dan Cox found in his 2018 piece on this topic. Amid Kavanaugh’s contentious confirmation hearing, a 2018 Pew poll found that 61 percent of Democrats said abortion was very important to their vote that year, whereas 10 years earlier, only 38 percent of Democratic voters felt the same.

That said, neither Democrats nor Republicans were that concerned about abortion heading into the 2020 election: Fewer than half of registered voters (40 percent) said abortion would be a very important factor in their political decisions last year, per Pew.

geoffrey.skelley: Yeah, the conventional wisdom has long been that Republicans are more animated by abortion and the Supreme Court than Democrats. For example, Justice Antonin Scalia’s death during the 2016 presidential campaign and then-candidate Donald Trump’s pledge to nominate a conservative justice helped to make the court a bigger issue in the campaign, which in turn, helped Trump lock down Republican-leaning evangelical Christian voters and win the extremely close 2016 presidential election. Of course, in an election that close, you could say anything mattered, but the court was certainly a factor.

sarah: That’s right, Geoffrey, and it’s something Senate Minority Leader Mitch McConnell, then majority leader, banked on as a strategy to energize Republicans. He refused to consider then-President Barack Obama’s Supreme Court nominee, leaving a vacancy on the court for Trump to fill. (Only to then contradict his own logic in 2020). 

It’s possible, then, that this case could be a huge animating factor for Democrats — or Republicans — headed into the 2022 midterms. 

Let’s talk a little bit more about the 2018 midterms, though, since the court played such a big role with voters then. What do we know about the role of the court in that midterm election?

meredithconroy: As FiveThirtyEight editor-in-chief Nate Silver wrote in the lead up to the election, Kavanaugh’s nomination may have actually helped Republicans more than Democrats, especially in the Senate, where they gained in FiveThirtyEight’s forecast. 

The confirmation hearings really hurt Kavanaugh’s perception overall, though. There was a pretty big split by party as the chart below shows, but support for Kavanaugh remained strong among Republicans.

geoffrey.skelley: As Meredith is getting at, I’m not sure how much the battle over Kavanaugh’s nomination mattered in the House in 2018, where Democrats won handily, but it is possible that it contributed to the defeat of Democratic senators in red states, like Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Claire McCaskill of Missouri. 

They each needed to win over at least some Republican-leaning voters to stand a chance at reelection, but all three voted against Kavanaugh. Notably, Democratic Sen. Joe Manchin voted for Kavanaugh, which might have saved his bacon in his close reelection race in deep-red West Virginia. 

But turning our eyes to 2022, if the court’s decision is interpreted as overturning Roe, that could prove politically beneficial to Democrats in the 2022 midterms. 

Liberal activists will be motivated by it, but it also might keep pushing college-educated voters into the Democratic camp, or at least keep them there after they moved toward the Democrats during Trump’s time in office. 

Consider that Pew’s most recent polling numbers found that 59 percent of Americans think abortion should be legal in all or most cases. But among college graduates, that figure jumps to 68 percent. And as voters who are more educated tend to be more likely to vote even in lower-turnout midterm elections, this could help Democrats limit some of the midterm penalty the president’s party tends to suffer. 

meredithconroy: That’s right, Geoffrey. A big story in the last two presidential election cycles has been the role education plays in vote choice, so if abortion is a big issue moving into 2022 because the court has seriously dismantled Roe, I imagine that divide will grow, or at least remain the same. Consider how the GOP has already started to shed white, college-educated, suburban women; seriously altering Roe could hurt their standing even more with this group.

sarah: That’s an interesting point, but, of course, it’s so hard to game out how this will (or won’t) affect an election still more than a year away. And how the justices will rule is still an unknown.

One trend, at this point, though is clear. Trust in the court is waning. A 2020 Gallup poll conducted before Justice Ruth Bader Ginsburg’s death found that only 40 percent of Americans said they had “a great deal” or “quite a lot” of confidence in the Supreme Court.

Trust in the court is low, in part, because just like Congress and our other institutions, it is increasingly seen as partisan with Democrats having a less favorable view of it now.

geoffrey.skelley: Trying to claim that the judiciary is above partisan politics just ignores the appointment process and the often partisan views of judges themselves. There’s an interesting tension here, too, for Democrats in that some activists in the party are pressuring Justice Stephen Breyer to retire so that President Biden can appoint a younger liberal justice in his place, but Breyer seems intent to stay on at least a while longer. He’s said that politics doesn’t — or shouldn’t, at least — play a part in judges’ work. 

meredithconroy: Ha, jinx, Geoffrey. The idea that justices are insulated from public opinion and apolitical or objective has always been a bit of a joke. They may sometimes rule in line with public opinion, as they did in 2020 (and political science research does find justices to consider public opinion, especially when issues are less salient), but they also sometimes rule according to their own idea of the law.

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