Nearly a year after the United States Supreme Court overturned the Roe v. Wade legal precedent from 1973 that codified women’s right to abortion in America, the decision seems to have instigated a transformation in the country’s political environment. Many Republican-controlled states have enacted stricter and stricter bans on the procedure, while many Democratic-controlled states have enacted more and more extensive safeguards for it. U.S. public opinion on the issue—highly consistent for decades—meanwhile appears to have shifted substantially toward greater support for access to abortion.
In last November’s U.S. midterm elections, Democratic candidates made it a central campaign issue—and their party performed better than historical and economic data predicted it would. This month, in a special election to the Wisconsin State Supreme Court, the Democratic candidate focused her campaign on abortion and defeated her Republican opponent for the decisive seat on the state bench. It was one among a number of notable Democratic wins at the state level where the issue of abortion was a major factor. Just how much is the Supreme Court’s decision altering U.S. political life?
Mary Ziegler is a professor at the Florida State University College of Law and the author of three books on the history of U.S. abortion law and politics. To Ziegler, the repeal of Roe hasn’t really changed American voters’ views on abortion policy; it’s changed their views of its political stakes. Increasingly, Americans see even limited Republican initiatives to regulate abortion as belonging to a more ambitious strategy to enact maximal and broadly unpopular restrictions. In the near term, it’s unclear how Republicans will adapt their political strategies as they look ahead to the U.S. elections in 2024. It’s also unclear how Democrats will sustain their political advantages of the moment, as other issues start to compete more for voter attention. But with an emerging generation of American voters now understanding abortion access as a defining political issue, Ziegler says, a new American political reality is just beginning to take form.
Eve Valentine: Polling seems to show a remarkable change in U.S. public opinion on abortion since the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision last June. How do you interpret that?
Mary Ziegler: I’d say we have to be a little skeptical about it, actually. If you look at certain aspects of public opinion on abortion in the U.S., they’ve been very sticky over time. Since the 1970s, Americans have tended to be opposed to outright bans on the procedure; they’ve tended to be supportive of certain restrictions; and they’ve tended to be more supportive of those restrictions the later in pregnancy you go. The pattern hasn’t really shifted. What’s shifted is what it means to Americans to be opposed to or supportive of restrictions on abortion. That’s where something’s really happening.
Today, if you ask an American voter, Do you support Republican policies on abortion?—you’re now asking them whether they support, for example, bans from the point of fertilization, often with fewer or no exceptions. But these kinds of policies have been unpopular since the ’70s—even before the 70s, across large segments of the American population. So part of what’s happening is that the terms of the debate on abortion are changing, and Americans are reacting to that.
And to some extent, this is changing in turn how Americans are interpreting specific new restrictions on it. People are becoming more likely to look at, say, a ban on abortion after 15 weeks, or some more incremental law, as a political step—by anti-abortion groups and Republican legislators aligned with them—toward an absolute ban; they’re becoming less likely to see it as a regulation they might approve of on its own terms.
Valentine: The issue has plainly had a significant impact on how well a lot of Democratic candidates did in last November’s U.S. midterm elections—or more recently, for example, on the voting for a key seat on the Wisconsin State Supreme Court. How do you understand that impact?
Ziegler: It’s had a significant impact, certainly. I think the biggest question is: How important is it going to end up being in races that turn critically on more issues than just abortion?
In the Wisconsin State Supreme Court election, there was more than one issue in play, but it’s fair to say that abortion was the central issue. And whenever we’ve seen ballot initiatives on abortion in the U.S., the abortion-rights side has done really well pretty much all the time.
What’s shifted is what it means to Americans to be opposed to or supportive of restrictions on abortion. That’s where something’s really happening.
Things tend to get more complicated, though, when there are candidates running on a number of issues at once and abortion is just part of the picture. To your point, we’ve seen rather a big swing in favor of Democrats in 2022 even in those cases. But if you look at where that swing has happened, you see Republicans were still campaigning on quite sweeping policies against abortion—because they evidently believe that, especially in Republican-dominated states, voters will set aside their preferences about abortion on account of their partisan commitments. Or they believe that voters just won’t care enough about abortion for it to be a deciding issue.
And that now turns out not to be dependably true. In 2022, there was compelling evidence that, especially with Generation Z voters—voters born between the late ‘90s and the early 2010s—abortion has become a mobilizing issue. It’s become something that changes political outcomes.
Here, I think the Republicans are working out of an older political playbook. If you were to look back to the pre-Dobbs days, you’d see poll after poll where a majority of Americans said they supported what Democrats were doing on abortion—but that abortion was a very low priority for them among election issues overall. I expect Republicans are hoping that the post-Dobbs shift is temporary—and that the U.S. will go back to a situation where Americans don’t care that much. But that seems unlikely—not least because so many conservative state lawmakers and federal judges are keeping the issue in the news.
Valentine: After the Wisconsin election, an editorial in The Wall Street Journal called the Republican loss a “five-alarm warning” for the 2024 U.S. elections for president and Congress, saying the party needs to moderate its position on abortion. Meanwhile, Ron DeSantis, the Florida Republican governor who appears to be Donald Trump’s main challenger for the 2024 Republican presidential nomination, is advancing a new law in Florida banning abortions after six weeks of pregnancy. So how are Republican leaders and strategists reacting to the new political dynamics around the issue?
Ziegler: There are conflicting responses, really. You have some anti-abortion groups saying that the way for Republicans to win on this issue is not to run away from it—to face it head-on. You have other anti-abortion groups saying—as Ryan Anderson argued also in The Wall Street Journal recently—that Republicans shouldn’t ultimately moderate their stance on abortion, but they should embrace opportunities for incremental progress in restricting it. DeSantis’s initiatives in Florida, advancing restrictions without pushing for a ban at fertilization, would be an example of that approach.
Either way, anti-abortion groups are maintaining pressure on Republican politicians—saying, if you go too far from what we want, you’re going to lose support from the Republican base and start seeing your position in the party threatened by challengers from the right.
At the same time, there’s a lot of fear within the Republican Party that even more incremental approaches to restriction, like a six-week ban, are going to cost them support in the coming general election—and maybe cost them support from donors earlier.
There’s a lot of fear within the Republican Party that even more incremental approaches to restriction, like a six-week ban, are going to cost them support in the coming general election—and maybe cost them support from donors earlier.
So it’s not clear that Republican leaders entirely know what they want to do at this point. It’s hard to say whether there’s an emerging trend among them, in part because we still don’t know who the party’s standard-bearer is going to be. DeSantis’s strategy is basically to prioritize winning the primary by courting social conservatives and to worry about the general election later. You can see other Republicans inclined either to try moderating their party’s position or just not talk to about abortion at all.
Trump, for his part, doesn’t really care about anyone else in the Republican Party—or is his own person, to put it in a nicer way. He’s been outspoken about abortion, without much regard for the party’s position overall—or much fixed loyalty at all to either the party or the anti-abortion movement. He is facing increasing pressure from anti-abortion groups to backpedal on some of the relatively moderate statements he’s made recently and to endorse a ban—though this pressure has yet to produce any results. It’s an interesting dynamic, in part because Trump doesn’t seem to think he needs to do much for the anti-abortion movement at this point—since he gave it the justices who reversed Roe; he seems to think he can more or less rest on his laurels.
But in general, I don’t see the Republican Party as having sorted this out yet. There’s no apparent unifying strategic framework. There are stories emerging daily—including from people inside the anti-abortion movement—that no one really knows what to do. And there’s plenty of evidence that that’s true.
Valentine: Meanwhile, Democrats seem to want to keep abortion at the top of the public agenda, because they believe it’s drawing voters to them. How do you see Democratic strategy developing around the issue?
Ziegler: It’s complicated. On the one hand, to your point, Democrats are eager to talk about it. And they’re being proactive at the state level, in places like New York, California, and Illinois—as opposed just to reacting to what Republican-controlled states are doing. On the other hand, a lot of the agenda right now is being driven by the courts and by conservative judges—in ways that I expect neither Democrats nor Republicans would likely choose if they could.
In this context, Democrats are taking opportunities from the federal courts when they come. There’s litigation now around new state bans on the abortion pill mifepristone, for example. There’s also an emerging political issue around the Comstock Act—a mostly dormant “anti-vice” law from the 19th century that anti-abortion groups and politicians are now referencing in arguments for the legitimacy of state mifepristone bans—which I’m sure will start to shape democratic strategy. To date, there hasn’t been a big push to repeal Comstock, but sooner or later, that’s very likely to change—in part because of the role the federal courts are playing in setting the agenda around it.
While there may be a lot of political opportunity for the Democrats right now, it’s not as if it’s all going to be there for the taking indefinitely.
Valentine: What broader political effects do you anticipate following the Democrats’ recent victories at the state level? In Wisconsin, for instance, it seems local groups are now planning to bring cases before the State Supreme Court, not only about abortion laws but about election certification, union regulations, and other issues.
Ziegler: In the near term, there could be real ramifications at the state level on issues like election certification or union regulations, it’s true. At the same time, as things progress, I think we’re going to see the stakes of local and state elections increasing across the U.S. The Wisconsin State Supreme Court race could be a sign of what’s to come in this respect, in the sense that we’re likely to see a lot of highly contested, very expensive state–supreme-court elections in a lot of Bellwether states—states, like Wisconsin, where electorates tend to reflect the voting behavior of the country as a whole.
So while there may be a lot of political opportunity for the Democrats right now, it’s not as if it’s all going to be there for the taking indefinitely. We’ll certainly see a lot of money poured into state legislative races and state–supreme-court races. And the state–supreme-court races, I think, will be the more revealing of the two, in the sense that, historically in the U.S., we haven’t seen much money or attention paid to these races. They tend to have run more or less on autopilot. That era has probably drawn to a close.
Valentine: With all this in view—the constancy of U.S. public opinion on abortion over the decades and the new political dynamics triggered by the repeal of Roe last year—what are the biggest effects you’d anticipate the issue having on U.S. society as a whole over the coming years?
Ziegler: Up until recently, there hasn’t been much movement against that constancy in American popular opinion on abortion, and there’s been very little movement on the centrality of the issue in American politics. From time to time, there’d be some, but what we’re seeing now is a very significant development. For a lot of Gen Z voters across party affiliations, and for a lot of Democrats across generations, it’s becoming a defining political issue in a way never really was before. That’s now going to have ripple effects into elections for years to come.
It’s also changing the politics around the U.S. Supreme Court. For a long time, American conservatives were much more invested than liberals or progressives were in the question of control over the Court as an election issue. I think we’re seeing that start to change now too. The Wisconsin Supreme Court election isn’t a perfect proxy, but the energy developing on the left focused on elections as tools to influence the character of American courts has intensified tremendously since the reversal of Roe.