What Amy Coney Barrett’s Confirmation Could Mean For Roe v. Wade

What Amy Coney Barrett’s Confirmation Could Mean For Roe v. Wade

When pressed about her views on abortion during the confirmation hearings, Judge Amy Coney Barrett dodged. “If I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another on a pending case,” Barrett said, in response to a question from Democratic Sen. Dianne Feinstein about Roe v. Wade and Planned Parenthood v. Casey, two key precedents on abortion rights.

It’s not at all unusual, of course, for Supreme Court nominees to try to avoid answering questions about how they’d vote on hot-button issues like abortion. But Barrett, unlike other recent Supreme Court nominees, has a fairly clear perspective on abortion, having previously joined groups and signed public statements opposing it. That stance appears to fall significantly to the right of where most Americans are on the issue, and her unwillingness to answer questions about these precedents is a reminder of just how dangerous the topic could be for both the Supreme Court and the Republicans.

Many Americans do support some limitations on when in a pregnancy abortions can be performed, but the public’s views on abortion are complex, according to recent polling data we looked at. And overall, a majority of the public does not want Roe, the 1973 decision that established a constitutional right to an abortion, to be overturned, though liberals and conservatives alike think that might happen with Barrett on the court.

Here’s an overview of how Americans feel about abortion (spoiler: It’s complicated!) and how Barrett’s presence on the court could lead to rulings on abortion that are more conservative than what most Americans want.

Not all abortion restrictions are unpopular

Over the past 10 years, states have passed hundreds of laws making it harder to get an abortion, and though a number were blocked by the courts, these regulations still resulted in significantly reduced abortion access in large swathes of the country. However, these restrictions aren’t uniformly unpopular.

Public opinion differs quite a bit on when an abortion should be legal. For instance, Gallup found in 2018 that 60 percent of Americans think abortion should generally be legal in the first three months of a pregnancy, while support fell to 28 percent in the second trimester and just 13 percent in the third trimester. Similarly, Americans were much more likely to support abortion if the pregnant person’s life was in danger or the pregnancy was caused by rape or incest than they were if an abortion was being considered for other reasons, like fetal abnormalities or simply not wanting to carry the pregnancy to term.

That may be one reason that many of the abortion restrictions passed in the past decade have aimed to chip away at the edges of the Supreme Court’s precedents on abortion rights rather than attack them directly. During Barrett’s hearing, for instance, Republican Sen. Lindsey Graham mentioned an incremental bill he’s been pushing unsuccessfully in Congress for several years, which would prohibit abortion after 20 weeks post-fertilization, several weeks before when medical professionals generally agree that a fetus is viable.6 That’s important because under Casey, the 1992 case that has now largely superseded Roe, states are mostly free to regulate abortion after the point of fetal viability; before that, restrictions can’t impose an “undue burden” on the person seeking an abortion. Laws like Graham’s — which are in effect in 17 states, according to the Guttmacher Institute — therefore don’t necessarily challenge the constitutional right to abortion directly; instead, they could be used to argue for a different standard under which states are allowed to restrict abortion.

Compared to overturning Roe directly, Graham’s approach might be more in line with public opinion — and might eventually have a better chance of success with a Supreme Court justice like John Roberts, who seems cautious about moving too quickly to the right on hot-button issues. “The status quo with more restrictions wouldn’t be that unpopular, especially if the restrictions are focused later in pregnancy,” said Mary Ziegler, a law professor at Florida State University who studies the history and politics of abortion law.

If Barrett is confirmed to the Supreme Court, though, all of this could change, and there would likely be more pressure from the conservative bloc to consider cases that could take restrictions on abortion rights well outside many Americans’ comfort zone.

Barrett could push the Supreme Court outside the mainstream

Barrett might have demurred on direct questions about Roe in the hearings this week, but she admitted that she does not view Roe as a “super-precedent” — a ruling so ensconced in American law that no one is making any serious efforts to get it overturned — and as a Notre Dame law professor in 2006, she signed an ad condemning the “barbaric legacy” of Roe. This signals that she might be open to more dramatic changes in abortion law than the Supreme Court has recently been willing to consider, and she’s potentially joining the court at a moment when anti-abortion advocates are taking increasingly bold swings at the legal foundation of abortion rights.

In the past few years, some anti-abortion advocates have grown fed up with the incrementalist approach and have successfully pushed for state laws that either ban abortion entirely, or restrict it to be allowed only very early in a pregnancy. Seven states, for example, have passed laws prohibiting abortion after fetal cardiac activity can be detected, which effectively bans abortion after six or seven weeks of pregnancy.7

Those laws directly challenge the right to abortion in the early months of pregnancy that was established in Roe and reaffirmed in Casey, and in many cases, they make abortion illegal even in circumstances when most Americans would prefer the procedure was permitted, like when the pregnancy is the result of rape or incest. And they are also much less likely to be popular with the public — according to polling by Gallup, even many people who identify as “pro-life” want abortion to be available in at least a few circumstances.

Pro-choice and pro-life labels obscure nuance in views

Share of self-described “pro-choice” or “pro-life” Americans by when they think abortion should be legal

SELF-IDENTIFY AS …
Legality of Abortion Pro-choice Pro-life Overall
Legal under any circumstances 55% 3% 29%
Legal in most circumstances 23 4 13
Legal in only a few circumstances 18 53 35
Illegal in all circumstances 3 38 20

Gallup survey conducted May 1-13, 2020. Respondents who answered “no opinion” or who said abortion should be legal under some circumstances but didn’t say if it should be under “most” or “only a few” circumstances are not shown.

Source: GALLUP

Americans are also much more divided over early abortion bans than they are over restrictions later in pregnancy, because as we noted earlier, support for abortion in the second trimester is actually quite low. But according to a Kaiser Family Foundation poll conducted in 2019, Americans are basically split on whether abortions should be prohibited when a fetal heartbeat can be detected (49 percent are in favor, and 50 percent are opposed). And support for that restriction fell to 38 percent when respondents were told that a fetal heartbeat could be detected as early as six weeks into a pregnancy, before many women even know they’re pregnant.

It’s possible that even if she’s confirmed, Barrett won’t be the crucial swing vote on an abortion case — it’s hard to predict exactly what her ideology will be. But because four of the nine justices must agree on whether the court will take a case, the presence of an additional conservative could mean the justices are more likely to agree to hear a far-reaching abortion case, putting the court in the crosshairs of public opinion. Ziegler noted that over the past few years, Justice Clarence Thomas — who used to be the most zealous anti-abortion advocate among the justices — has been joined in many opinions by Justice Samuel Alito, and she said that even Justice Neil Gorsuch might be open to dramatic changes to abortion law, based on his dissent in an abortion rights case from earlier this summer.

“[Americans] don’t like the idea of outright [abortion] bans, they don’t like the idea of criminalization, and they don’t like the idea of overturning Roe,” Ziegler said. But with a six-justice conservative majority on the court, advocates of the anti-abortion movement may ramp up their efforts to push more dramatic restrictions — and more justices on the court could be open to their efforts.

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