06.29.2022 0

If Democrats are so confident abortion is an electoral juggernaut, why didn’t they ever put it into law when they had supermajorities?

By Robert Romano

The political fallout of the Supreme Court’s decision to overturn Roe v. Wade and return the question of prohibiting or regulating abortion to the states continues as President Joe Biden and Congressional Democrats are promising swift vengeance at the polls in the November midterms.

On June 24, President Joe Biden told his supporters that now the only way to nationalize abortions on demand in America will be for Congress to do it, stating, “The only way we can secure a woman’s right to choose and the balance that existed is for Congress to restore the protections of Roe v. Wade as federal law.”

Biden added, “This fall, we must elect more senators and representatives who will codify a woman’s right to choose into federal law once again, elect more state leaders to protect this right at the local level. We need to restore the protections of Roe as law of the land.  We need to elect officials who will do that.”

But why didn’t Democrats ever do that in the first place?

That is, if Democrats are so confident abortion is an electoral juggernaut, why didn’t they ever put it into federal law when they had supermajorities to overcome a Senate filibuster in the 1965, 1977 and 2009?

In 1965, Democrats had 68 Senators. In 1977, they had 61 Senators. And in 2009, they had 60 Senators after Arlen Specter switched parties to vote for Obamacare. At any one of these junctions, flush from victory in the presidential election, and abortion could have been codified into federal law.

Before the Supreme Court ever found penumbras of liberty in Roe v. Wade in 1973, public opinion was already shifting in favor of abortion, particularly after FDA approval of birth control in 1960 and women were entering the U.S. labor force and fertility plummeted.

In 1969, Gallup reported that only 40 percent supported abortion with 50 percent were opposed, but in the months leading up to the Roe decision, in 1973, opinion shifted, with 46 percent in favor and 45 percent opposed.  

Especially after the Supreme Court ruled in Roe in 1973, public opinion immediately came to adhere to the decision, according to historical polling data taken by Gallup, with clear majorities saying either abortion should be legal under some or all circumstances.

In 1977, after Jimmy Carter’s election, with 61 Senators, Gallup reports 55 percent of Americans favored abortion under some circumstances, and 22 percent under any circumstances.

In 2009, after Barack Obama’s election, opinion had barely shifted, with 53 percent favoring abortion under some circumstances, and 22 percent under all circumstances.

Even as Republican-led states were passing trigger laws at the state level in the event Roe was ever overturned, when Democrats had supermajorities in Congress and had every opportunity to preempt them, they instead chose to do nothing.

Now, with the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, public opinion will once again be tested. What if it shifts, as it has in the past, to adhere to the Supreme Court’s decision to leave abortion up to individual states?  

Don’t look now, but a Rasmussen Reports poll found 50 percent of likely voters said they supported the Dobbs decision even though more voters identify as pro-choice rather than pro-life.

When the question is framed as the Court returning the issue of abortion to states, “The Supreme Court recently overturned the 1973 Roe v. Wade decision, so that each state can now determine its own laws regarding abortion. Do you approve or disapprove of the court overturning Roe v. Wade?” 50 percent of respondents say they support the decision, while 45 percent said they were opposed.

Compare that to the question in an NPR-PBS-Marist poll taken after Dobbs, which asks about Roe guaranteeing a right to abortion: “The U.S. Supreme Court has overturned the 1973 decision in Roe versus Wade which guaranteed the right to abortion. Do you support or oppose the Supreme Court ́s decision to overturn Roe versus Wade?” Then, opposition swings against the decision, 56 percent to 40 percent.

There’s a lot of space there, and might indicate that about 10 percent or so of the public is persuadable on the issue of leaving it up to states versus nationalizing abortion law. Perhaps a better question now might be: Should Congress legalize abortions nationally, or should it be left up to each state to decide for themselves, as the Supreme Court ruled in Dobbs?

UPDATE, 6/29, 2022 at 11:35 a.m.: Almost on cue, the latest Economist-YouGov poll finds that even after Dobbs and overturning Roe, when asked “Should abortion laws be decided nationally or left to the states?” 45 percent of respondents say it should be left to the states, and 40 percent say it should be decided nationally. Critically, Congressional Republicans are still leading Congressional Democrats on the generic ballot in November, 45 percent to 40 percent, indicating that almost nothing has changed politically on the question Biden hopes to pose to voters in November. Is this issue a paper tiger for Democrats?

This is an all or nothing moment for the national pro-choice movement. Presumably, the reason Democrats never acted to nationalize abortion law was because they never had the votes, likely because they cannot agree under what circumstances abortions should be allowed. Maybe they were afraid they’d lose the election. Now it will be put to the political test.

Usually, in midterm elections, the incumbent party loses seats, particularly in the House of Representatives, with exceptions in 1934, 1998 and 2002 under extraordinary circumstances of the Great Depression, public fatigue over the Bill Clinton impeachment and 9/11. Is overturning Roe one of those exceptions? We’ll find out soon enough.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.

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