In his concurring opinion in Dobbs vs. Jackson Women’s Health Organization, U.S. Supreme Court Chief Justice John Roberts attempted to find a middle ground on abortion, by upholding the state of Mississippi’s prohibition after 15 weeks, while declining to overturn Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) in total.
The chief justice argued what should be preserved from the Roe and Casey cases is “a reasonable opportunity to choose” an abortion for any woman who wants one.
Under Casey, a state could protect the “potentiality of human life” through legislation once a fetus reached “viability” – around 24 weeks.
Roberts argued this “viability line” never made sense.
He contended that instead of determining abortion based on when an unborn baby can survive outside the womb, it should be based on whether a woman has enough time to obtain an abortion after realizing she is pregnant.
“The law at issue allows abortion up through 15 weeks providing an adequate opportunity to exercise the right Roe protects,” the chief justice concluded in upholding the Mississippi law.
A 2019 study of abortion in the U.S. reports 79% were performed at nine weeks or less of pregnancy, and 93% at 13 weeks or less. Abortion laws in European countries set limits at 15 or 18 weeks.
Opinion polls reflect a large majority of Americans would agree with Roberts’ compromise. But no advocates on either side, nor any of the eight associate justices, evinced any interest in his lonely search for finding common ground.
Instead, the five-justice conservative majority’s decision to overturn Roe and Casey “is a serious jolt to the legal system,” Roberts wrote.
Numerous polls consistently show broad voter support for legal abortion.
A Wall Street Journal poll just prior to the court’s decision found 68% of people didn’t want Roe overturned. A Fox News poll reported 63% of voters wanting Roe kept in place, only 27% wanting it reversed.
But unlimited abortion is also not a popular position. The same Fox poll found banning abortion after 15 weeks (the Mississippi provision) was favored by 54% of voters, with 41% opposed.
Public opinion on abortion remains diverse and largely moderate.
While the “pro-life” Republican Party base celebrated the overturning of Roe, GOP candidates have an abortion political problem in the 2022 general election.
The long predicted “Red Wave” may not form as abortion – and Donald Trump – energize Democrats.
The abortion rights Democratic Party activist base is now more motivated to vote in November.
In conservative Kansas, a “pro-life” August referendum banning abortions lost in a rout, with high voter turnout. In five House special elections this summer, Democratic candidates outperformed Biden in 2020 while making abortion rights a main issue.
In Nevada, with President Joe Biden unpopular, 40-year record inflation and defending his draconian shutdowns and record unemployment during the pandemic, Gov. Steve Sisolak has been given an unexpected political opportunity with the overturning of Roe.
In 1990, Nevada voters approved Question 7 giving state constitutional protection in Nevada law making abortion legal within 24 weeks. It passed with 63.5% of the vote and the Nevada Legislature may not alter the law, unless it’s first repealed by state voters.
Polling in Nevada shows a strong majority favor abortion rights. The chance of abortion law changing in Nevada is nil, but the GOP is still likely to lose some votes on the issue.
Sisolak’s GOP “pro-life” gubernatorial opponent, Sheriff Joe Lombardo, acknowledges “abortion policy is already addressed in Nevada law. The governor and legislature cannot make changes to it.” It’s “settled law.”
Lombardo shouldn’t shrink from engaging on abortion. He should go on offense by pointing to many extreme Democrats who want no abortion limits at all.
Regrettably, Roberts failed in his attempt to fashion a constitutional justification for political compromise on abortion. The all-or-nothing legal extremes prevailed.
E-mail Jim Hartman at lawdocman1@aol.com.
