The latest CBS News poll confirms what polling during the confirmation hearings for Justice Brett M. Kavanaugh showed: There is very little appetite for overturning Roe v. Wade and letting states, as we saw in Georgia, Alabama, Ohio and Missouri, dismantle women’s control over their health, reproduction and, ultimately, their lives. The latest polling finds that 67 percent of Americans want Roe to remain in place; a mere 28 percent want it overturned. “Most who want the Supreme Court to overturn Roe v. Wade would be happy (35%) or satisfied (31%) if that were to happen. Among those who want Roe v. Wade kept as it is, a majority would be dissatisfied or angry if the ruling were to be overturned, including 44% who said they would be angry,” the CBS report said.
Partisan division should not surprise anyone, but the number of Republicans who don’t want Roe repealed is stunning: 45 percent. Less than a majority (48 percent) want it overturned. Wait. All of the genuflecting to the evangelicals, all the purity tests and all the judicial battles have consumed a party that is virtually evenly split on the issue?
There are a few explanations for this disconnect.
First, Republicans never thought Roe was in any real danger. It was politically convenient to go along with the far right, pretending as if there was no downside politically or for women, when overturning Roe was a fantasy. Now, even socially conservative Republicans who would favor more restrictions on abortion don’t really want to take away the judicial guardrails. Perhaps antiabortion advocates never meant what they said, or perhaps the political reality of getting rid of Roe never really hit home. There is nothing like the threat of losing something (a benefit, a right), as we saw in Obamacare, to increase appreciation for the value of what would be lost.
Second, the evangelical right has for decades been very loud, very well organized and very convincing in their argument that the GOP could not survive without them. The price for their loyalty was an absolutist stand on abortion. (Opposition to same-sex marriage used to be as well, but — given that same-sex marriage is so widely accepted and without a shred of data showing harm to children, an old bugaboo on the right —that’s gotten cut out from their list of demands.) Trump’s ability to mesmerize the evangelical right and their utter subservience to him have made evident to anyone paying the least bit of attention to politics that principle matters a whole lot less than power to these people. And as with guns, creating one-issue voters increases their political leverage.
Third, national, “respectable” Republicans who favor a few restrictions never thought they’d be at the mercy of the radical fringe that seeks to force rape and incest victims to complete their pregnancies. If Roe was overturned and the issue went back to the states, there would be some civilized compromise “more toward the center” as Sen. Mitt Romney (R-Utah) put it. Now they see that giving states control over the issue will result in legislation that shocks the conscience and loses votes.
Public opinion, therefore, has tremendous ramifications for both parties, for 2020 and for the direction of the GOP.
Public opinion also figures in the Supreme Court’s willingness to overturn 45-year-old precedent. But, you say, the courts are immune from public opinion! Not really. For starters, Chief Justice John G. Roberts Jr., as we saw with the Affordable Care Act cases, is loath to put the court in the position of making controversial political decisions that cast the court as a partisan body. There is even more reason for concern when a supermajority of Americans would oppose the outcome and the outcome would be unduly harsh (e.g., forcing rape and incest victims to finish their full pregnancy). The court is right to worry that a dramatic, tectonic shift in the law in the direction of a hugely unpopular outcome would raise fundamental questions about the legitimacy of the court and its role in a democracy.
counterpointThe pro-life movement needs to move cautiously in purple states
If there is a silver lining in this new battlefield in the partisan wars, it is that apparently there is more support among Republicans for preserving some degree of women’s autonomy. If advocates of the ban are exposed as a small minority wildly out of step with the rest of the country, they may lose influence and favor — and usher in a cooling-off period and reaffirmation of the status quo.
The worst thing for the antiabortion advocates and the GOP may have been in exercising the raw power to pass unpopular, inhumane and oppressive legislation. If they pay a price for their extremism in 2020 and beyond, they will have no one to blame but themselves and their radical ideologues.