Crowds at the last in-person March for Life in Washington DC in 2020

A while back I wrote Twitter thread arguing that abortion bans do, in fact, work to reduce abortion.

I followed it up with a blog making the same argument in more detail:

Towards the end of the blog I said this:

… the best evidence we have suggests that abortion bans do indeed make a substantial difference to abortion rates. They are not the only thing that does. Socioeconomic and cultural factors are hugely important too. But there’s no necessary contradiction between those two. Legal restrictions on abortion and socioeconomic supports for women and babies should not be an either / or, but a both / and.

I absolutely stand by that. But it’s just as possible to over-emphasise the role of the law as it is to under-emphasise it. Having good pro-life laws without having a broader ‘culture of life’ isn’t sustainable. In fact, it’s a great way to not have good pro-life laws for long.

Look at Ireland. Just as Ireland shows that abortion bans do work, it also shows what happens if people don’t actually believe in human rights for all humans. The eighth amendment worked: it reduced the abortion rate and saved a lot of lives. But while every life saved by the eighth is of immeasurable value, the strategy of the pro-life movement in Ireland didn’t work in the long run, because we lost the culture.  People’s minds changed on abortion, and after a while the country’s laws changed to reflect that. This isn’t a matter of blaming anyone. It’s just stating the fact that your abortion laws can be great, but they won’t stand up for long unless people are actually convinced of the merits of the pro-life position. Sure, the law can act as an educator and help inform people’s attitudes. But it’s only one of the many factors that help shape people’s opinions, and if you rely on it alone, you’re basically doomed.

I’m worried that we’re seeing one example of what that looks like in the USA at the moment. The US pro-life movement is, on paper, poised on the verge of historic victory. The US supreme court now has six Republican appointees on it compared to only three Democratic ones. Republicans have repeatedly pledged to appoint judges who will overturn Roe v. Wade, the 1973 Supreme Court decision that delcared abortion a constitutional right in the US. Given the size of the court majority, a lot of people are thinking that that decision’s days are numbered. Indeed we’ve seen a raft of pro-life laws passed recently, some of which are have worked their way through the US’s appeal system and will soon come before the Supreme Court. These cases will give the court ample opportunity to strike down Roe if they are so inclined, which would allow states to pass abortion restrictions which are currently deemed unconstitutional.

So on the legal front things look reasonably good. When you look at public opinion though, the picture is quite different. Recent polling finds that Roe is more popular than ever. One poll from Fox finds that 65% favour keeping it, the highest figure ever recorded. One surprising statistic from that poll is that for the first time ever a majority of Republicans didn’t want the decision to be overturned.

For the first time, over half of Republicans (53 percent) join majorities of Democrats (77 percent) and Independents (64 percent) in saying Roe should remain the law of the land.

Though the Fox poll is particularly striking, a similar picture is painted by other polls from Marquette University and Gallup. The pro-life movement’s legal victories in the United States have not been accompanied by broad changes of mind in favour of human rights for all humans.

Now the picture is a bit more complicated than this. Majorities of Americans consistently support abortion restrictions that Roe v. Wade makes impossible, while at the same time saying they support Roe itself. That same Fox poll that showed record numbers favouring Roe still showed the same division over abortion laws that polling has shown for years:

Nearly half (49 percent) think abortion should be legal in all (29 percent) or most cases (20 percent), while the other half (49 percent) say it should only be legal in some cases such as rape, incest, or to save the life of the mother (38 percent) — or not at all (11 percent).

An abortion ban that only made exceptions for rape, incest, and to save the life of the mother would be impossible as long as Roe v. Wade remains the law of the land. Alexandra DeSanctis argues that this shows that the real problem is that Americans don’t understand what Roe v. Wade is about, rather than that they really support it.

I’m not so sure. At least, I’m not so sure it matters. As we’ve written before, not that many people care that much about abortion. In the 2016 Irish general election, only 2% of people said that abortion was the most important issue in determining who they would vote for, with a further 2% saying it was the second-most important (that’s pro-life and pro-choice people combined). This is something that’s extremely hard for most dedicated pro-lifers to understand. But telling a pollster you oppose abortion doesn’t mean that you’re particularly committed to ending it. When it comes to public opinion, it’s not just preferences that count, it’s preference intensity.

So I don’t think it matters that much if people’s attitudes to Roe v. Wade aren’t particularly coherent. If they don’t care enough about abortion to actually get informed about what the Supreme Court’s decision actually says, but say they support Roe, then I don’t think it makes sense to think of them as secret Roe opponents who are just unfortunately confused. I think it makes more sense to think of them as people who don’t particularly like abortion but aren’t particularly exercised about it: the kind of people who can easily become pro-choice when it’s time to make a real decision about what abortion laws should be. What’s more, if you break down people’s support for abortion restrictions by stage of the pregnancy, you see more support for an Ireland-style regime that allows abortion up to the first 12 weeks.

This situation poses two major risks to the pro-life movement’s impending legal victory.

1. It could stop Roe being overturned at all.

The court could simply be scared off any major change to the law by public opinion. Chief Justice John Roberts is an institutionalist who’s notoriously sensitive to the public reputation of the court. If huge majorities favour keeping Roe, he’ll be that much less willing to stick his neck out and vote to overturn. Then it would just take one more vote to go the other way and Roe would stay. It’s happened before: the last time the court revisited Roe, in 1992’s Planned Parenthood VS Casey, two Republican appointees voted to uphold Roe while slightly limiting its scope. How some of Trump’s appointees would rule on Roe is a bit of an unknown, especially when public opinion is against overturn. The fate of Roe could depend upon the whims of Brett Kavanaugh.

2. A post-Roe world could see the US become even more pro-choice

If Roe does get overturned, various states will immediately enact total or near-total bans on abortion. As we’ve seen in Ireland, total bans generate hard cases. When abortion bans become a reality public opinion can shift very quickly – unless people are genuinely convinced by the pro-life position and willing to do whatever it takes to make that work, whether that’s drastically expanding child benefit and maternity leave or funding high quality perinatal hospice care. Remember, getting rid of Roe only returns the issue to the states, who are free to legalise abortion if they so choose. Unless people’s minds and hearts genuinely change, I think we’ll see pro-choice laws in a lot of states you’d expect to ban it, and sooner than you’d think. That’s to say nothing of the already pro-choice states like New York and California, in which a majority of abortions happen anyway.

I don’t know exactly why support for Roe has gone up even as the political / legal situation for pro-lifers has improved, but I have guesses. I think some of the strategic moves that large sections of the US pro-life movement have made, like embracing Donald Trump, have had cultural costs even as they’ve had political benefits. And the association between high-profile pro-lifers like Abby Johnson and the anti-vax movement hasn’t helped either.

Regardless of whether I’m right about the causes, I think the Irish case shows that laws alone aren’t enough to build a truly pro-life society. If you don’t actually change people’s minds and build up a pro-life culture, those laws will inevitably fall. If you pursue legal change in a way that actually drives up support for abortion, you’re sawing off the branch you’re sitting on. I hope that’s not what’s happening in the United States.