Roe versus Ferguson 19 May 2019.

Almost a third (32 percent) of Americans want the Supreme Court to overturn Roe v. Wade, while almost two-thirds don’t want the Supreme Court to overturn Roe v. Wade.  Seems clear enough as a democratic policy preference.[1]

However, there are intricacies.

First, does life begin at the moment of conception?  If it does, then do those lives deserve legal protection from harm?  If it, doesn’t, then why do women want abortions?  Is there some definable moment when not-life turns to life?  When it gets its own insurance and phone plan?

Plessy v. Ferguson (1896) was “stare decisis” (settled law—just to show I’ve been reading the newspapers, if not law books).  All the same, the Supreme Court overturned this settled law in Brown v. Board of Education (1954).  In the common understanding (which is different from a lawyer’s explanation), the Supreme Court overturned Plessy on the grounds that it did a moral wrong.

If life does begin at the moment of conception, then abortion is a moral wrong disguised as an elective medical procedure.  The Supreme Court could overturn Roe on the same moral grounds that it overturned Plessy.  (Yes, a bunch of judges appointed by Republican presidents would be accused of having wormed and slimed their ways through Senate confirmation votes in order to achieve this end.  Many reasonable people will find that accusation credible.)

Second, what exactly would the Supreme Court overturning Roe v. Wade mean for the law?  Would it return abortion to the pre-Roe status where it was regulated by the states?  Or would it replace the nation-wide right to “choice” with a nation-wide ban on abortions?  If a Supreme Court decision led to a nation-wide ban on abortion, then would the best analogy be to “Scott v. Sandford” (1857)?  That decision held two things.  First, that African-Americans could not be citizens.  Second, that the division of the country into “slave” and “free” areas was unconstitutional.[2]  Slave-holders could go anywhere they wanted, establish their “peculiar institution” anywhere they wanted.  Majority opinion in a democracy (by the standards of that time, not ours) be damned.

Third, ignorance of facts plays a role in current discussions.  Half (50 percent) of Americans are open to curtailing abortion rights to some degree, while 44 percent support at least an integral defense of Roe as it now stands.  “Right to life” advocates appear to have played upon this willingness to curtail, rather than ban, abortions.  The state of Alabama has recently passed a law banning abortions once a heartbeat is detected in a fetus.  Nationally, 50 percent support such a ban.  However, that support dropped to 38 percent when the people being polled are told that physicians’ modern technology can detect a heartbeat at six weeks.  That 12 percent change undoubtedly comes from men who aren’t too familiar with the menstrual cycle and its vagaries or with the psychology of women facing the possibility of an unwanted pregnancy.[3]  When they figure out they’ve been played, they shift position.

A Supreme Court decision endorsed by only one-third of the people and opposed by two-thirds of the people is going to be a problem.

[1] “Poll Watch,” The Week, 24 May 2019, p. 17.

[2] This referred to the “Missouri Compromise” (1821).

[3] Me neither, but I recognize that I’m not.

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Public Opinion in the Addams Administration 1.

It has become an age of bitter political polarization.  Everyone says so.  To take one small example, in January 2017, 16 percent of Democrats believed that Donald Trump was following ethics laws; 79 percent of Republican believed that Trump was complying with the laws.[1]  A month later, almost half (46 percent) of Americans wanted Donald Trump impeached.[2]

If the conventional wisdom is true, what is to be made of the areas of broad consensus in the American public?  Take four examples: allegations about the election of November 2016; climate change; health care, and abortion.

Almost three-quarters (70 percent) believe that President Barack Obama did not have Donald Trump’s communications tapped.  Fewer than one in five (19 percent) of Americans believe that President Obama had intelligence agencies wire-tap Trump.[3]  That leaves 11 percent “not sure.”  Almost two-thirds (63 percent) of Americans saw Russia’s intervention in the presidential election as a “serious” issue.  Well over half (58 percent) of Americans believed that the allegations should be investigated by an independent prosecutor, while more than a third (35 percent) opposed an independent investigation.[4]

In 2015, only 27 percent of Americans described themselves as “believers” in climate change.  By early 2017, 50 percent described themselves as “believers.”  Another 31 percent believe in climate change, but think that it has been exaggerated by environmentalists and the media.[5]  Almost two-thirds (65 percent) of Americans support the development of alternative energy sources, while just over a quarter (27 percent) support the development of fossil fuels.[6]

In 2016, 51 percent of Americans believed that the government should ensure that all Americans have health-care.  By early 2017, 60 percent believed this, while 38 percent believed that it is not the government’s job.[7]  As the Republican “repeal and replace” of Obamacare got moving, virtually all (96 percent) of Americans believed that it was either “somewhat” or “very” important that all Americans have access to affordable health insurance.  This included virtually all (91 percent) Republicans.  Almost as large numbers (84 percent) believed that the Affordable Care Act should not be repealed until a suitable replacement was ready.[8]

Finally, over half (54 percent) of Americans want the Supreme Court to uphold Roe v. Wade, while less than a third (30 percent) want it overturned.[9]

So, if you leave it to ordinary Americans, women would retain their right to choose whether to bring a child into the world.  If you leave it to the Supreme Court, that may not be the case.  Of course, the Court might take the position that it does respect for the law in general no good if the courts drive huge numbers of people into disobeying a particular law.

The ground has shifted under the feet of the Trump administration (and the Republican Party) on climate change and health-care.  Their best course may be to pursue market-based policies to address both issues.  That is, declare “victory” and get out.

Democrats and Independents, if not every Republican, can smell a rat.

[1] “Poll Watch,” The Week, 27 January 2017, p. 17.

[2] “Poll Watch,” The Week, 24 February 2017, p. 17.  They probably expected him to be replaced by Hillary Clinton.

[3] “Poll Watch,” The Week, 7 April 2017, p. 17.

[4] “Poll Watch,” The Week, 17 March 2017, p. 17.

[5] “Poll Watch,” The Week, 7 April 2017, p. 17.

[6] “Poll Watch,” The Week, 24 February 2017, p. 17.

[7] “Poll Watch,” The Week, 27 January 2017, p. 17.

[8] “Poll Watch,” The Week, 10 February 2017, p. 17.

[9] “Poll Watch,” The Week, 17 February 2017, p. 17.