One explanation is that politicians don’t know what the public wants, or so my research suggests. And with public opinion against them, these laws may fail in their goal of toppling Roe v. Wade. Despite the Kavanaugh-bolstered Supreme Court, research also suggests that public opinion still matters for judicial decisions.
Public opinion on abortion
For over 40 years, public opinion on women’s right to access abortion has been remarkably stable. In 2018, a Gallup poll found 79 percent of Americans supported abortion in at least some circumstances. When asked about the Roe v. Wade decision, only 23 percent supported overturning it. If anything, support for abortion access has been growing in recent years.
The same holds when Americans are asked whether they support banning abortion. Using data from the 2016 Cooperative Congressional Election Survey, Data for Progress estimated state-by-state support for abortion bans. In no state did even 25 percent of people support banning abortion. Even in Alabama, only one in five people support abortion bans.
In other words, over many decades, across numerous surveys, no matter how the questions are asked, the vast majority of the public supports women’s access to abortions, under at least some circumstances.
Do politicians know this?
Politicians don’t have an accurate view of what their constituents want
Why are state legislators passing laws that the vast majority of their constituents disagree with? One explanation is that state legislators do not actually know what their constituents want.
To understand whether state politicians know what the public wants on abortion, I fielded a survey with Alexander Hertel-Fernandez and Matto Mildenberger in 2017. In this survey, we asked state legislators across the country what proportion of their constituents supported banning abortions. In total, 204 state politicians responded to that question in our survey. Using standard techniques, we then estimated what proportion of people living in each politician’s district in fact supported banning abortions. We could then compare politicians’ perceptions of public opinion to actual public support.
On average, we found that state legislators overestimated their districts’ support for abortion bans by 15 percentage points. In other words, many state legislators believe that a majority of their constituents want them to ban abortions, when in fact they do not.
We are not the only researchers to find this result. In 2014, David Broockman and Christopher Skovron similarly asked almost 2,000 state politicians across the country about what proportion of their constituents supported always making abortion legal. They found that politicians underestimated public support for abortion access by almost 10 percentage points. Republican politicians were even less likely to correctly estimate public support for abortion access.
These findings hold for many issues, not just abortion. In the same research project, my co-authors and I have found that state politicians misperceive what their citizens want on everything from clean energy to background checks for gun sales to support for raising the minimum wage.
Why are state legislators getting public opinion wrong? In a research paper examining senior congressional staff, my co-authors and I found that political elites were substituting their own beliefs for the public’s beliefs. That may be true on abortion laws; politicians who personally oppose abortion access are likely projecting those views onto their constituents.
The role of public opinion in American democracy
These recent state laws represent the most aggressive attempts to limit women’s rights. But they are far from the only attempts to rollback abortion access. Since 2011, statehouses have passed hundreds of laws that limit abortion access in other, more subtle ways. In many cases, these laws are out of sync with public opinion.
And that suggests that these laws may have a hard time reaching the Supreme Court. In a democracy, public opinion influences policy and institutions — including the courts, according to a significant amount of research. Many commentators believe that Chief Justice John G. Roberts Jr. may be particularly concerned about the legitimacy of the court as an institution if Roe v. Wade is dismantled directly.
If the Supreme Court does decide to use these new state abortion bans to overturn Roe v. Wade, it could bring on a crisis. Democrats are already discussing proposals to expand the number of justices on the court, an idea that has surfaced historically when the judicial branch defied public opinion.
Public opinion is an important force in American politics. Judges and politicians who ignore it may find themselves in trouble.
Leah C. Stokes (@leahstokes) is an assistant professor in the department of political science at the University of California, Santa Barbara.