In The News Quiz October 11, 2021

Abortion Politics: Everything Old Is New Again

On issues from pandemic protection (can the government mandate vaccines?) to education (should public-school classrooms be integrated, with kids from diverse backgrounds?), the U.S. judicial branch—unelected federal judges, many serving lifelong terms—has an outsized role. Nowhere is the courts’ influence more powerfully felt than in long-lived political debates about abortion. For the nearly half-century since Roe v. Wade, state and federal courts have shaped policy. And with the Supreme Court agreeing to review a Mississippi law challenging Roe, the fate of legal abortion again lies in a group of judges’ hands.

In the 1973 Roe decision, the Court affirmed women’s foundational right to decide whether to bear a child, with abortion permissible up until a fetus is “viable,” or can survive outside the womb—about 24 weeks into a pregnancy. Several states have recently tested that limit, with legislatures reducing the permissible number of weeks to 15, as in the Mississippi case under Supreme Court review, or fewer: Texas recently set the nation’s lowest limit on when a fetus is considered viable and may not be legally aborted, at six weeks. (The Supreme Court has so far refused to block the Texas law, though seems open to considering the case.)

How might the Court decide? Individual justices, sifting evidence, draw their own conclusions, of course. And with six conservative justices on the nation’s highest bench, if personal preference were the only guide, the Roe policy would likely be overturned. Also central to judicial decision-making is the power of precedent, or cases previously decided, and Roe has been settled law for nearly a half-century, surviving legal challenge after challenge.

Political scientists also suggest that the Court rules with at least an eye to public opinion. Might shifting public preferences on abortion predict a new Supreme Court ruling? In fact, public views on abortion have been remarkably stable over the past half-century. In national surveys, around a fifth of the public (20%) insist that abortion should always be illegal. A slightly higher proportion, closer to 25%, think all abortion decisions should be up to the mother; the government has no place in this personal decision. And more than half of Americans, in poll after poll over five decades, affirm some restrictions on some types of abortion, but agree with the central Roe consensus about abortion’s legality through the second trimester (each lasting about twelve weeks).

What do you think? On abortion—or other heated public policy issues—should judges follow their own instincts, uphold the power of legal precedent, or uphold public opinion? Some combination of these? And, as you ponder, also consider: should judges be major players in policymaking, unlike most democratic systems, where elected leaders make decisions?

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