In the wake of Dobbs v Jackson, state governments will probably now have the discretion to ban abortion altogether – and many are ready to do so. Thirteen states have trigger laws in place to ban abortion after Roe is overthrown. According to the Guttmacher Institute, another 13 states are likely to severely limit the availability of legal abortions in the coming months.
the Supreme Court majority justified the decision by saying it gives the “authority to regulate abortion … back to the people and their elected representatives”. But as our data shows, there are big differences between what the people in many states want, and the laws that their legislators have passed. Many states with draconian anti-abortion laws have strong pro-abortion rights majorities.
States have become battlefields in America. Since the 1990s, state policies have polarized. Red states have reduced arms ownership restrictions and placed new restrictions on unions, while blue states have increased environmental regulation and taxes on high earners. This state policy polarization was made possible in part by a gridlock in Washington. The Supreme Court has also facilitated state policy polarization by giving states more discretion in many policy areas, for example by allowing state governments to reject Medicaid expansion through the Affordable Care Act in NFIB v Sebelius.
This has consequences for abortion rights. About 60% of Americans support continuing to legalize abortions – more than the level of support for same-sex marriage when the Supreme Court lifted the state ban in Obergefell v Hodges in 2015. And this has consequences at the state level. Many Americans will live under new abortion bans that do not support them.
Many states against abortion rights have strong pro-abortion rights majorities. We tried to find out what percentage of people in each state support legal abortions. Based on work by one of us and Devin Caughey, we use micro-data from publicly available probability surveys of academic surveys such as the American National Election Survey and media surveys we provide via the Roper Center of organizations such as the Pew Research Center , ABC acquired. News, PRRI and the Kaiser Family Foundation.
We focus on polls that ask whether respondents support the ban on abortion “in all or most cases” or to keep it legal in all or most cases. This means that we exclude some polls that offer an ambiguous middle option on whether abortion should be legal under “some circumstances”. We then use a dynamic multi-level regression with post-stratification model that extracts as much information as possible from the data press to make sure we have accurate estimates for each state.
We find that a majority of the public in about 40 states supports legal abortion rights. Only about 10 states have majorities opposed to allowing abortions. In some of these red states, such as Louisiana and Arkansas, bans on abortion policies can align with the views of the majority of their public.
But this increase in congruence between policies and public preferences in red states is likely to be offset by the decrease in congruence in states with pro-choice majorities. Our analysis of poll data suggests that more Americans will be living under an abortion policy that is out of step with their preferences, with implications for democratic representation. This is largely because a clear majority of citizens in purple states that are likely to ban abortion – such as Arizona, Georgia, Michigan, Wisconsin and even Iowa – support abortion rights, as our figure shows.
If reproductive rights follow the trend of previous controversial policies, it is likely that many press states will eventually fall in line with the views of voters in their states and liberalize their abortion laws. Such a ban on abortion in these states may not survive in the long run.
The big question is whether majority opinion will shape policy in the short term. It depends in part on the quality of democratic institutions – the extent to which institutions allow people to choose legislators who reflect their policy preferences. In many of the press states that are likely to ban abortion, legislative cards have narrowly strengthened Republicans’ state legislative majorities.
For example, Democrats have won more than 50 percent of statewide votes in Wisconsin and Michigan several times over the past decade, but have failed to win legislative majorities in even a single election. This gerrymandering means that state legislators in those states are largely isolated from a setback to an abortion ban.
Strikingly, other Supreme Court rulings have made it much more difficult to challenge legislative cards. The Supreme Court majority says that its decision gives authority to the people and their elected representatives. In many states, it actually offers politically isolated legislators the opportunity to enforce anti-abortion policies that are opposed by a majority of their population.
State governments are playing an increasingly influential role in the lives of Americans in a wide variety of policy areas. Now that the Supreme Court has overthrown Roe v Wade, state governments will become even greater forces to shape the lives of Americans.
Jake Grumbach is a political scientist at the University of Washington. Christopher Warshaw is a political scientist at George Washington University
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