The Supreme Court, the Politics of Abortion, and the 2018 Elections

While President Trump’s nomination of  Brett Kavanaugh to the Supreme Court will focus attention on the nominee and his likely impact on the ideological composition of the Supreme Court, it will also add fuel to speculation about the impact this could have on the upcoming midterm elections – especially given the importance that many Republican elites, and voters, placed on the Supreme Court in Donald Trump’s surprise victory over Hillary Clinton. 

While it’s challenging to handicap the impact that Supreme Court politics will play in the Fall, the early focus is on whether a new conservative majority would overturn Roe vs. Wade and free states to make abortion illegal. If abortion rights are to become the center of the confirmation fight and one is interested in how this might impact the decisions of Texas voters come November, it’s worthwhile to review Texans’ attitudes towards abortion.

The University of Texas/Texas Tribune poll has asked numerous questions about abortion over the last 10 years, including a now-consistent item on whether or not Texas voters view themselves as “pro-life” or “pro-choice.” Overall, according to June 2018 UT/TT polling data, 44 percent of Texas voters describe themselves as pro-life while 39 percent describe themselves a pro-choice. There are, of course, unsurprising partisan differences. Among the state’s majority party, Republicans overwhelmingly describe themselves as pro-life (68 percent), about equal to the share of Democrats who describe themselves as pro-choice (66 percent).

But these broad labels, like the topic of abortion itself, hide complexities likely to shape the electoral environment that Democrats and Republicans will confront should the Fall be spent on the confirmation of a justice expected to overturn, or severely curtail abortion rights. 

Twenty-two percent of Republican women describe themselves as pro-choice compared to only 13 percent of Republican men. But even this does not entirely distinguish Democrats and Republicans in Texas, where 17 percent of Democratic women and 22 percent of Democratic men describe themselves as pro-life.

More nuanced questions result in a more multidimensional understanding of abortion attitudes beyond the picking of a label. For example, when asked a standard item on abortion access, with response options ranging from “by law, abortion should never be permitted”, “the law should permit abortion only in case of rape, incest or when the woman's life is in danger”, “the law should permit abortion for other reasons, but only after the need for the abortion has been clearly established”, to “by law, a woman should always be able to obtain an abortion as a matter of personal choice,” despite the common impression that Republicans are uniformly and comprehensively against access to abortion, only 22 percent would ban the practice entirely according to February 2017 polling. Only 17 percent of the Texas registered voter pool say that the procedure should never be legal. 

This points to a feature of abortion attitudes that we’ve written about before: there is relative tolerance for legislating what proponents call “common sense” abortion restrictions (e.g. parental notification requirements, waiting periods, and even transvaginal ultrasounds), focussed around the edges of but not frontally challenging the core right to abortion.

When we look back at an item from October 2014 that asked Texans when they think it should be possible for a pregnant woman to obtain a legal abortion across a range of seven circumstances including serious danger to her health, a pregnancy as a result of rape, a pregnancy as a result of incest, strong chance of a serious birth defect, inability to afford the child, a pregnancy produced out of wedlock with no desire to marry, and a married woman simply not wanting any/any more children, this pattern reveals itself clearly. Here we find that even among Texas Republicans, there are at least a few circumstances in which there is widespread agreement. Nearly three quarters think a woman should be able to access a legal abortion when her health is in danger, 66 percent in the case of rape, 65 percent in the case of incest, 46 percent in the case of fetal abnormalities, and around 20 percent in the circumstantial cases.

Interestingly, faced with this more nuanced question, it was Republican men who expressed more openness to abortion exceptions: 78 percent said abortion should be legal when a woman’s health is in danger, compared to 68 percent of Republican women; 69 percent said that it should be available in the case of rape or incest, compared to 62 and 61 percent of GOP women, respectively.

The initial reaction of jubilation on the right in the wake of Justice Kennedy's resignation is well-founded. It stands to reason that an election fought over the issue of abortion may motivate those on the right more than those on the left, if the core motivated belief is that, per the frequent rehteorical claim, every abortion represents the murder of a child. While on the left, the attack on Roe v. Wade thusfar has meant the erosion, but not the revocation, of what has been an established right in the experience of anyone under the age of 45. This dynamic has disadvantaged abortion advocates in their efforts to make abortion rights a core election issue, particularly given the subtleties of abortion attitudes. 

This election will be different. While it’s true that there are myriad issues that come before the Supreme Court, tactical decisions by Democrats and Republicans will determine how much to highlight the impact that the next Supreme Court justice will have over reproductive rights. There are pitfalls for both parties. But the hazards are particularly treacherous for Republicans, who may well discover that while advocating for the overturning of Roe v. Wade wins with key constituencies, it might also represent an overreach for their overall base. Republicans are neither in their self-descriptions nor their attitudes universally pro-life, even if, as a group, they are predominantly uncomfortable with the availability of abortion. It's long been a central tenet of Republican politics that overturning Roe is the Holy Grail of GOP interest group politics. But in the high stakes theater to come in the Senate, Republicans will have to be careful not to ignore the ambiguity in their broader base, lest they inspire a different cliche that will be particularly apt for the GOP should Roe's existence be undermined by a court defined by a Republican president and the slimmest majority of Senators: be careful what you wish for.