Sixty percent of Americans believe the U.S. Supreme Court should uphold its 1973 decision in Roe v. Wade, which established the constitutional right to abortion, according to a recent Washington Post-ABC News poll. Just 27 percent believe it should be overturned.
About the same percentage—58 percent—oppose legislation like Texas Senate Bill 8, which makes it more difficult to obtain or perform an abortion.
When asked specifically about the Texas law, which bans abortions after six weeks gestation and is enforced by private vigilantes, an even larger percentage—65 percent—think the Supreme Court should reject the law. A whopping 75 percent of Americans think the decision whether or not a person should have an abortion “should be left to the woman and her doctor.”
The poll sheds light on public support for abortion in the run-up to oral arguments on Dec. 1 in the Supreme Court case of Dobbs v. Jackson Women’s Health Organization, a direct challenge to precedent in both Roe v. Wade and Planned Parenthood v. Casey, which reaffirmed Roe.
Similarly, many legal scholars and feminists were stunned by the 5–4 Supreme Court decision on Sept. 2 to let the Texas law stand. The unsigned majority opinion cited “complex and novel” procedural questions as the reason for its inability to block the law’s implementation. Despite myriad lawsuits from plaintiffs ranging from the Department of Justice to on-the-ground abortion providers, the law has been in effect since Sept. 1.
The Court’s lack of action on a Texas law which flies in the face of Supreme Court precedent, as well as its decision to consider the Dobbs case in the first place, has created a crisis of confidence in the Supreme Court among the general public: A Gallup poll from September shows Supreme Court approval at 40 percent—the lowest number recorded since the poll first started tracking this question in August of 2000.
“The Court’s integrity is on the line,” said Nancy Northup, CEO of the Center for Reproductive Rights (CRR), during a Monday press call. CRR filed the Dobbs case, which involves a Mississippi law banning most abortions after 15 weeks, on behalf of Jackson Women’s Health Organization. The Court will consider the question as to whether all pre-viability prohibitions on abortion are unconstitutional—making it the first abortion case that could overturn Roe v. Wade.
A potential Supreme Court decision to uphold the ban at the heart of Dobbs v. Jackson “would undermine the rule of law,” according to Julie Rikelman, who will be arguing this case as the CRR’s senior litigation director. “The Supreme Court has protected this right as part of the constitutional right to liberty for just about 50 years. Not only has it protected the right, but it has already been asked to overrule Roe—it has already looked at every single argument Mississippi makes in this case for overruling Roe and it has rejected those arguments … as not good enough reasons. And yet Mississippi comes to them again with the very same arguments now.”
Rikelman is referencing two cases: the 2016 case of Whole Woman’s Health v. Hellerstedt, in which the Court ruled 5–3 that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion; and the 2020 case of June Medical Services LLC v. Russo, a virtual replica of Whole Woman’s Health, this time striking down a Louisiana law that would have reduced the number of abortion clinics in the state to one.
“The rationale on display by … the Supreme Court strains credulity,” wrote Madiba K. Dennie, a legal scholar and counsel at the Brennan Center for Justice. “The Texas Legislature seeks to avoid culpability for violating its residents’ rights by outsourcing its unlawful activity to uterus-watchdogs, and the Court seeks to avoid culpability for letting the violation proceed by hiding behind procedural loopholes.”
The Supreme Court “only has its reputation and institutional legitimacy,” Dennie continued. “It stands to lose both when it behaves in profoundly disreputable and illegitimate ways.”
Last week, Ms. and the Brennan Center (BC) for Justice, a nonpartisan law and policy institute at the NYU School of Law, co-published 11 essays as part of a groundbreaking series, “Abortion Is Essential to Democracy.” In the series, BC experts argue that voting rights and democracy are connected to abortion access. The essays all directly comment on the decision for the Supreme Court to hear oral arguments in Dobbs v. Jackson. Read all 11 essays here.
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