Perhaps Roe v Wade should be reversed? Credit Donor, CC-BY-SA-4.0

NBC and the WSJ have just released results of a poll about Roe v Wade and abortion in the US. Those results saying that quite a lot of people like the ruling and if it were to be reversed this would make them sad. Which is interesting, of course it is, but it’s also entirely irrelevant. For this is a matter of constitutional law. The entire point of that very subject being to preserve matters from, make sure they’re not influenced by, the twists and turns of public opinion. There is perhaps a subsidiary interesting thing we can say here which is that the more the public supports it then the more the ruling should indeed be reversed – or at least the less it matters if it is.

That survey:

As President Donald Trump’s Supreme Court pick readies for his eventual confirmation hearing, support for the court’s landmark ruling in Roe v. Wade has hit an all-time high.

A new poll from NBC News and the Wall Street Journal finds that 71 percent of American voters believe that the decision, which established a woman’s legal right to an abortion, should not be overturned. Just 23 percent say the ruling should be reversed.

That’s the highest level of support for the decision — and the lowest share of voters who want Roe v. Wade overturned — in the poll’s history dating back to 2005. In 1989, according to Gallup’s survey, 58 percent said they believed it should stay in place while 31 percent disagreed.

Well, super, and also sublimely unimportant. We have parts of the ruling system which are subject to the whims of the public. The legislative part for example, the people get to vote for who they want and if they want to change them then they can at the next election. That change in representative presumably leading to changes in the law.

Roe v Wade is over in that other bit of the system, the part not subject to such changing tastes. To switch subject a bit we could well imagine a groundswell of support for limiting or even abolishing that right to a fair trial. Say for terrorists, child molesters, murders of policemen perhaps. But the point of those constitutional rights, of the Supreme Court, even the very field of constitutional law, is to make sure that such basics are not subject to such whims and votes. And it was under the penumbra of this sort of law that the right to abortion was found.

That the public doesn’t get to vote on this stuff is the very point thus the public’s desires aren’t of any great importance:

Support for Roe v. Wade, the landmark 1973 Supreme Court decision that decriminalized abortion access, has reached an all-time high in the latest poll from NBC News and the Wall Street Journal.

Super, so what?

The court should – and will – rule on what they think the law actually is just as they did with Roe itself.

I would note that my own opinion is firmly against abortion in all circumstances but that’s entirely irrelevant to either the point above or the one below.

Where public opinion does matter is that it doesn’t matter if Roe v Wade is overturned. Or as above, the Supremes discover what the law really is and assert that. Because if the majority of the people want abortion to be legal then they can vote for it to be so. As was largely true before Roe of course, states progressively legalising it across geography and terms. The end result of Roe being stuck down will be a series of abortion laws which meet the desires of the people who live in the different parts of that federal system which is the United States. Which is pretty much what we should all be desiring anyway, isn’t it?

I would expect the end state to be something akin to what we’ve got across Europe today. Very few areas with what amount to bans, most with some set of increasing restrictions the later the trimester and near enough upon demand in the first in most places. Actually, there’s a good argument that Roe itself is what has prevented this democratic arrival at what most would like the situation to be anyway.

Support Continental Telegraph Donate


  1. (1) The US Supreme Court is famously not immune to the political winds, an observation that became widespread during President Roosevelt’s tirades against the “Nine Old Men” and attempt to increase that number to pack the court. It follows political trends not only in who gets nominated, but in the pressure put on them once they are on the court: Note Chief Justice Roberts’ contortions to find that Obama-care is constitutional.

    (2) Roe v. Wade was emphatically the product of “changing tastes.” There is nothing in the Constitution that supports a single nationwide policy regarding abortion, much less that one be handed down from the Court. Justice Kennedy’s decision was full of blather, such as the desire to “settle the issue” (something that should be done by the political branches!) by creating a blanket right. The Court did not “rule on what the law actually is,” just as Justice Kagan did not, in her recent dissent (in Janus) arguing that upholding employee free speech would disrupt a vital source of income for labor unions.

    (3) State legislatures have continually tried to snip away at this new “right” with requirements for disclosure, propaganda, waiting periods, and needlessly “high standards” for clinics. But “blue states” are emphatically in support of the right to abortion. Returning the decision to the states might require that some patients cross state lines, to a place where their decision is in line with the political consensus — just as they already do, to go to a casino. That is the strength of federalism: States are allowed to do things differently, and we see what works best.

    (4) The media (NBC being firmly on the left) are doing what Author argues nearby that the British media are doing regarding Brexit: arguing that a desired change will lead to the most unpleasant result, and that those advocating that change wanted that result all along.

  2. Congratulations, Tim. You are one of the handful of Englishmen who actually understand the American federalism. That is, presumably, why you don’t work for the BBC.

    In line with what Spike has said, I have read somewhere or other that Dubya wanted Roe v Wade overturned, not because of his opinion about abortion, but because it was unconstitutional. He believed SCOTUS had ruled on a matter outwith the areas of regulation granted by the Constitution.