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The essence of the American republic is under assault, and respect for governmental institutions and the branches of the U.S. political system is crucial for the survival of American democracy.
The unprecedented leak of a draft Supreme Court opinion that indicates a majority of the justices may be prepared to overturn Roe v. Wade, the decision that guaranteed abortion access to women across the country, is the latest major blow to the heart of the American constitutional system. It is another profound event in what Bari Weiss argues in a column today is the most important story of our moment, “how American institutions became a casualty in the culture war” in a “race to the bottom.”
The leak’s consequences to the Supreme Court are at least somewhat comparable to the damage caused by the 1/6 attack on the Capitol to the legislative and executive branches.
While nonviolent and involving far fewer people, the leak will undoubtedly badly undermine confidence in the highest court in the land and the judiciary in general, which is increasingly seen as politicized, according to a Quinnipiac University survey from November 2021.
Historically, public approval of the Supreme Court has been significantly higher than that of Congress. But, even before this leak, the court’s popularity had been declining for decades, reaching a low point for this century in Gallup polling. The September 2021 survey found only 40% of Americans approve of the way the court is handling its job.
Numerous surveys have found that Americans already believed American democracy was in peril. A USA Today/Suffolk poll found 83% of registered voters are very or somewhat worried about the future of democracy in the U.S. An Axios/Survey Monkey poll found only 51% of U.S. adults have faith in American democracy. And an ABC/Ipsos survey indicates that only 20% of adults are confident in the American election system.
I am normally not a pessimist, and I have argued multiple times in other columns that most people in the U.S. are moderates who are proud to be American and believe in our federal constitutional representative democracy. But you must have your head buried in the sand if all these developments don’t worry you.
What About Public Opinion on Roe and Abortion?
In the leaked draft opinion, Justice Samuel Alito is said to argue that “far from bringing about a national settlement of the abortion issue, [the decision in Roe] enflamed debate and deepened division."
Is that true?
First, I should say that this column is not going to analyze the validity of the many legal rationales purportedly cited by Justice Alito to overturn Roe. I am also not arguing that public opinion should be the standard used to decide whether Roe survives as the law of the land. It simply aims to review recent surveys of the American people to illustrate where public opinion stands.
All evidence shows that a clear majority of Americans support keeping abortions legal, although that support drops dramatically after the first trimester of pregnancy (more on that below).
Gallup has surveyed Americans on the issue since 1975, asking: “Do you think abortions should be legal under any circumstances, legal only under certain circumstances or illegal in all circumstances?”
Contradicting Alito, the numbers have not changed significantly. In 1975, 75% of those surveyed answered that abortion should be legal “under any” or “under certain” circumstances. In May of 2021, 80% answered that way.
The Pew Research Center asked the question differently, but also found last spring of last year that 59% of those surveyed believed that abortion should be legal in all or most cases.
A Quinnipiac University survey in September of 2021 found that 63% of registered voters say abortion should be legal in all (32%) or most (31%) cases.
What about overturning Roe v. Wade itself?
Most Americans oppose that. The most recent national survey, from Marquette Law School in January 2022, found that among those who have an opinion on Roe, 72% oppose reversing the decision. A CNN poll earlier in January indicates that 69% don’t want Roe overturned. 67% supported Roe in the September 2021 Quinnipiac survey cited above, and 58% in a June 2021 Gallup poll.
However, as mentioned above, support for abortion plunges after the first trimester. According to an AP/NORC survey in June of 2021, 61% of Americans believe abortion should be legal in all or most cases during the first trimester, but that plunges to 34% in the second trimester, and only 19% in the third.
A Wall Street Journal poll also found that a plurality of Americans (48%) strongly or somewhat favored laws that ban abortions after 15 weeks.
As you have probably heard repeatedly after news of the leak broke, drafts change and even votes can shift, so we will need to wait and see what the court rules.
But two things are unquestionable: First, confidence in an essential American institution has been badly eroded by the leak. Second, if the court overturns Roe in June, we will see a country split geographically between states that severely restrict abortion and those that do not.
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Cover photo: Pro-choice demonstrators hold signs in front of the U.S. Supreme Court in Washington, on May 3, 2022. A leaked draft of a majority opinion indicates the court is poised to strike down the right to abortion in the U.S. (Brendan Smialowski/AFP/Getty Images)