Like many Americans, I am deeply troubled by the leaked draft of the U.S. Supreme Court decision that unflinchingly repudiates Roe v. Wade—overturning federal law on abortion that has been in place for almost 50 years.   

The decision does not tiptoe around the edges, but rather declares, “Roe was egregiously wrong from the start.”  It finds the Supreme Court had no business finding federal or Constitutional rights regarding abortion; instead, the matter of regulating abortion was one for the states. Thus, the opinion concludes, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Trump’s three Supreme Court appointees (Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020) all acknowledged Roe v. Wade as “settled law” and “established precedent” in their formal Senate hearings regarding confirmation.  Also, Senator Susan Collins distinctly recalls assurances regarding Roe that Gorsuch and Kavanaugh provided her in private meetings in her office. Yet, these three justices have signed onto the majority decision that declares Roe “egregiously wrong from the start.”  In my view, it’s inescapable that these three appointees were either deceitful, evasive, or untruthful in securing their appointments to the Court.  

Politically, Republicans are cheering the decision, as it vindicates decades of work to overturn Roe v. Wade and make abortions either illegal or extremely difficult to procure.  Their narrative has long demonized Democrats as murderers who want to make abortions universally available.  Republicans, on the other hand, are protecting the unborn and preventing the ongoing slaughter of innocents enabled by Democrat policies and programs.  Along with condemning Biden and the Democrats for inflation, high gas prices, increasing crime, and other problems, the Republicans can use the repeal of Roe v. Wade to fire up their base and help win elections—especially the upcoming November 2022 midterms. 

Yet, should the decision stand as written, there’s a good chance it will have the opposite effect in terms of winning elections. Let me explain why.

For decades, the American people, in polls and surveys, have supported the right to abortion. For instance, in a Pew Research report released on May 5, 2021, almost 60% (59%) said abortion should be legal in all or most cases.  A similar Gallup poll that same year (May 2021) found 80% supported the right to abortion in all or most cases.  Numerous polls have shown the majority of Americans believe Roe v. Wade should be upheld.  Similarly, as to who should make the decision regarding abortion, 70% said it should be left to the woman and her doctor, while only 24% said the decision should be regulated by law (ABC News/Washington Post Poll, May 3, 2022).   

While it’s clear that Republicans and Republican states tend to poll very differently on the matters cited above, and while it’s probable that the overturning of Roe v. Wade could fire up the Republican base, it’s even more likely that the decision will prompt a strong reaction from the substantial majority of Americans who support the right to abortion.  The decision, coupled with actions to severely limit abortions in many Republican states, is likely to be seen as a major threat to those who have long supported a woman’s right to choose and protections regarding the right to abortion.  Even the unsuccessful attempts by Trump and Republicans to repeal Obamacare—a threat never realized—produced a huge voter turnout in the November 2018 midterms that swept the Democrats into control of the House of Representatives.  

And, the impending threat that brings out the voters is likely to go beyond the elimination of federal protections regarding abortion.  The Court’s decision repudiating Roe v. Wade was based upon the determination that the Constitution does not confer a right to an abortion (neither expressly, nor through the interpretation of other Constitutional provisions in prior Supreme Court decisions, including the right of privacy).  In the coming months, expect to hear a barrage of concerns about other Supreme Court-established protections being called into question. 

The American people are also likely to be offended at the duplicity of the Trump appointed Supreme Court justices.  The people’s recourse may be to do exactly as Supreme Court suggested, to “return the issue of abortion to the people’s elected representatives.”  Many voters may elevate the issue of abortion to the top of their concerns, voting out those who would restrict or prohibit this right.  

In the end, all this division and political turmoil over abortion is a sad outcome for America.  As difficult as abortion is as a policy matter, I do believe we have some strong common interests we could build upon.  First, we have a common interest in finding ways to reduce the annual number of abortions over time.  If we examine longitudinal data (see attached chart), we, in fact have been doing just that.  The numbers and rates of abortion have been going down in recent decades, including the eight years of the Obama Administration.  With educational programs, more accessible birth control, and other strategies, we have been on a path to reducing abortions.  We can do better. 

Second, as a part of working together to bring down the number and rates of abortion over time, the parties should attempt to develop a balanced federal policy for the country as a whole.  While there is merit to allowing the states to determine their individual policies, a patchwork of 50 policies, with no minimal guarantees or limitations, means women will be treated very differently depending on where they live.  Some, because of fiscal or other circumstances, will be left without options.  This will lead to “sanctuary states” that enable abortions for those in states with prohibitive policies. This matter should not be left to Supreme Court decisions.  Instead, Congress should attempt to reach compromise on federal law that establishes basic protections and parameters for policies adopted by the states. 

Finally, Republicans and Democrats need to stop portraying one another as evil actors in order to win elections and maintain political control.  Using these narratives thwarts cooperation and working on common interests.  If we’re serious about reducing the numbers and rates of abortion, we need to be working together. 

Number, Ratio and Rate of Reported Induced Abortions in the United States, 1980 – 2018