Could Supreme Court supercharge midterms with abortion ruling?

Roll Call: Could Supreme Court supercharge midterms with abortion ruling?
By:  Nathan L. Gonzales

If redistricting hadn’t complicated the midterm elections enough, a Supreme Court decision on one of the country’s most polarizing issues has the potential to supercharge the fight for the House and Senate.

This week, the Supreme Court announced it would hear a challenge to a new Mississippi law — Dobbs v. Jackson Women’s Health Organization — that would ban abortion, with limited exceptions, after 15 weeks. The case is widely viewed as having the potential to reverse the landmark 1973 Roe v. Wade decision.

Democrats immediately cried foul, and Republicans were optimistic given the current complexion of the Supreme Court. But it’s best to suspend judgment on the ultimate impact in 2022, considering voters’ opinions on abortion have been more nuanced, historically, than the two parties are willing to admit.

It depends on what you’re asking
“The Supreme Court’s decision to hear this case is an opportunity for anti-choice extremists to undermine decades of legal precedent and overturn Roe v. Wade, putting 25 million people at risk for losing abortion access,” said Emily Cain, the executive director of EMILYs List, which works to elect Democratic women who support abortion rights.

“States should be allowed to craft laws that are in line with both public opinion on this issue as well as basic human compassion, instead of the extreme policy that Roe imposed,” said Jeanne Mancini, the president of March for Life, an annual gathering of anti-abortion activists held each January in Washington.

As with most hot topics, public opinion depends on how the issue is framed, which has ramifications for the political impact. 

In the context of Roe v. Wade, public opinion is on Democrats’ side. Sixty-four percent of adults do not want Roe to be overturned, compared to 28 percent who do, according to a 2018 poll by Gallup, which has been tracking that question for 30 years. 

In the context of the timing of an abortion, Republicans’ Mississippi law is in line with a couple of decades of polling as well. According to the 2018 Gallup poll, 60 percent of adults said abortion should generally be legal during the first three months of a pregnancy. That number dipped to 28 percent for the second three months, and just 13 percent in the final trimester. The Mississippi law bans abortions after 15 weeks, or three weeks after the first trimester.

What’s even more remarkable is that sentiment has been nearly unchanged over the course of more than 20 years. So it’s unlikely that sentiment toward Roe or on the timing of an abortion has changed dramatically in the past couple of years.

It all comes down to turnout
With few people changing their mind on questions related to abortion, the greatest impact for the midterm elections could be turnout. Republicans need a net gain of one seat for the Senate majority and a net gain of five seats for the House majority.

Democrats are at risk of some voter apathy after winning the White House and the Senate last cycle, and keeping the House. Without President Donald Trump in the Oval Office or on the ballot to energize the base as he did in 2018 and 2020, Democrats could benefit from a timely, polarizing issue to be a prime focus in order to ensure that their core voters show up in 2022. 

If the Supreme Court, led by new justices nominated by Trump, overturns the landmark 1973 case, Democrats would certainly view it as a massive conservative overreach. A key question for subsequent elections is how many voters, who prioritize abortion and choice, were not planning to vote in the midterms but would be compelled to vote after a Supreme Court decision. An angrier vote counts the same as every other vote. 

Republicans have some turnout risk in 2022 as well. The GOP needs to prove it can turn out the entire Trump coalition when he’s not on the ballot. Republicans couldn’t do it in 2018 and even when they did in 2020, the party lost control of two branches of government. So any issue that energizes conservatives that doesn’t depend on Trump could benefit the GOP. But again, how many people does the situation bring off the sidelines? Most single-issue, anti-abortion voters were probably planning on voting anyway. 

Polarizing and moderate
It’s not surprising that Americans have been consistently divided on the abortion issue. In May 2020, Gallup found that 48 percent of adults consider themselves pro-choice while 46 percent identify as pro-life. That’s nearly identical to 2018, when the divide was 48 percent to 48 percent. 

But there’s more nuance among the electorate than the party leaders would have you believe. 

In the same May 2020 poll, Gallup asked whether abortion should be legal under any circumstances, illegal in all circumstances, or legal only under certain circumstances. A majority of Republicans (59 percent), 50 percent of independents and 42 percent of Democrats said it should be legal under certain circumstances when given the option of an absolute position. 

According to past survey data, a majority of voters are not comfortable with legal abortion without restrictions or limitations, nor are they interested in banning all abortions. Yet that’s a level of nuance unlikely to be seen in future campaigns