Roe, the Constitution and the American people
"Yet overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence." So writes Robert Bork in a superb article.
But don't the American people affirm Roe v. Wade overwhelmingly?
DailyKos, citing a Gallup poll, says the American people would reject a nominee to the Supreme Court who wants to reverse Roe by 53%-37%.
Which is half-right. The problem is that the American people don't know what's in Roe, and think reversing Roe means banning abortion at all times and under all circumstances. A huge catalog of polls on abortion is now available over at AEI.
In an April 2005 CBS News/NYTimes poll, Americans were asked if abortion should be generally available as it is now, available under stricter limits than it is now, or not available at all:
As now: 36
Not permitted: 24
Roe's status quo only gets about 36% approval. Stricter limits would require, whether the American people know this or not, either modifying or reversing Roe. That position has the support of about 2/3 of the American people.
Here's another poll, much more specific, that helps clarify this point:
In January 1998 a CBS News/NYTimes poll asked Americans if abortion should be legal as it is now; under stricter limits; illegal except for rape or incest or when the mother's life is in danger; or illegal under all circumstances:
As now: 25
Not permitted: 9
Here, the pro-Roe position gets only 25%; a hard ban on abortion gets about 50%.
These figures are somewhat higher on the pro-life side than other polls that have asked the same question. In August 1996 the answers were:
As now: 36
Not permitted: 9
Here, the pro-Roe position only gets 36%; 43% want some kind of strong ban on abortion with another 20% wanting stricter regulation than currently--about in keeping with the April 2005 survey.
A March 2001 LATimes poll asked which was closest to the respondent's position: legal under all circumstances; legal except in cases of rape or incest or where the mother's life is in danger; illegal in all circumstances. The answers were:
Legal all: 42
Legal except rape/incest/life: 41
Illegal all: 12
Again, that puts a majority of the American people (53%) in favor of restrictions that would require reversing Roe.
We can put this in very specific terms: Judge Alito is now taking furious criticism for allowing a Pennsylvania law to stand that requires a woman to certify that she has notified her husband of her decision to have an abortion. That law was later struck down by the Supreme Court as contrary to Roe. What do the American people think?
1992 Gallup/CNN/USA Today: 73 yes/25 no
1996 Gallup/CNN/USA Today: 70 yes/26 no
2003 Gallup/CNN/USA Today: 72 yes/26 no
Since the 1992 Casey decision which struck down spousal notification, the position held by about 70% of the American people would either require reversing Roe or substantially modifying it.
So, yes: most Americans say they support Roe. Until they realize what it really stands for...