Pro-Lifers Pushed Too Far and Doomed 2 Abortion Bans

In the wake of last year's U.S. Supreme Court Dobbs v. Jackson Women's Health Organization decision overturning constitutional protections for reproductive rights, moves by conservative states to restrict abortion are running up against the limits of just how much change even many pro-life Americans want. Last week, both Nebraska and South Carolina legislators rejected bills that would have largely banned abortions. And polls find some degree of buyers' remorse in states that restricted abortion after Dobbs, suggesting that lawmakers misread the room.

Anti-Abortion Bill Meet Unexpected Defeat

"A bill that would ban abortions in Nebraska after six weeks of pregnancy fell one vote short in the Legislature on Thursday," Nebraska Public Media reported. The bill failed even after the introduction of a compromise amendment "which would change the legislation to ban abortions after 12 weeks of pregnancy, instead of the six weeks the legislation called for."

Almost simultaneously, "the latest push to outlaw nearly all abortions in South Carolina is over for the year, as senators who oppose a ban from conception stood their ground and scuttled the bill," according to The Post and Courier of Charleston. "And Senate Majority Leader Shane Massey made clear there's no appetite in the Senate to make another doomed attempt in 2024 for a bill with limited exceptions to an all-out ban."

Both Nebraska and South Carolina are solidly red states. Republicans hold clear majorities in both South Carolina's House and Senate and Nebraska's unicameral legislature. According to a simplistic take on post-Dobbs politics, that's supposed to indicate a clear path for near-absolute bans targeting abortion. But the bills failed at a time when residents of some states that implemented restrictions after the Supreme Court decision show signs that they think lawmakers went too far. As it turns out, even many Americans who were unhappy with the strong protections for reproductive rights embodied in the Roe v. Wade decision overturned by Dobbs weren't necessarily looking for total prohibition.

Buyers' Remorse on Abortion Bans

Unsurprisingly, as some more-conservative states changed their laws post-Dobbs the percentage of Americans who say abortions are difficult to obtain locally rose from 32 percent in 2019 to 42 percent in 2023, according to Pew Research. "The most striking change has occurred among people living in states where abortion is now prohibited: About seven-in-ten (71%) say it would be difficult to get an abortion, up from the half who said this in 2019."

Interestingly, in states where abortion is now prohibited the share of people saying abortions should be easier to obtain rose from 31 percent in 2019 to 43 percent this year. In fact, the percentage saying abortions should be easier to obtain also rose in restrictive states and in those where it is legal. Those saying it should be harder to get an abortion dropped from 40 percent to 30 percent in prohibitive states, 32 percent to 28 percent in restrictive states, and 30 percent to 26 percent in states where the practice is legal.

These shifts came as Pew found that the percentage of Americans believing that abortion should be legal in most cases stands at 62 percent, very close to the 60 percent who held that opinion in 1995 (opinions wandered somewhat in the intervening years). By contrast, 36 percent favor making abortion illegal in most cases, almost identical to the 38 percent who held that view in 1995. The big change is the growing partisan divide in this as in so many matters. "Democrats and Democratic-leaning independents are about twice as likely as Republicans and Republican leaners to say abortion should be legal in all or most cases (84% vs. 40%)," note Pew.

Americans' Abortion Opinions Are Complicated

So, why the buyers' remorse in conservative states dominated by abortion-averse Republicans? It may be because we have an unfortunate tendency to frame the issue in binary pro-life/pro-choice terms. Americans' differing opinions can't all be described that way.

Gallup has tracked opinions on abortion since 1975, but it offers three possibilities in its questions: "Do you think abortions should be legal under any circumstances, legal only under certain circumstances or illegal in all circumstances?"

As of 2023, "illegal in all circumstances" is the preferred position of only 22 percent of Republicans. Ten percent of Republicans think abortion should be "legal under any circumstances." The dominant position now as it has been since 1975 is "legal only under certain circumstances," favored by 67 percent.

"Legal only under certain circumstances" is also the preferred position for 48 percent of independents, compared to 36 percent who favor "legal under any circumstances" and 13 percent who want abortion to be "illegal in all circumstances."

For Democrats, "legal under any circumstances" is preferred by 57 percent of respondents. "Legal only under certain circumstances" is preferred by 38 percent of respondents (and was the top preference until about 10 years ago). Only 4 percent want abortion "illegal in all circumstances."

Other polling that makes room for nuance finds similar results.

"While most Democrats say abortion should be legal in all or most cases, sizable shares favor restrictions on abortion under certain circumstances," Pew noted last May. "And while most Republicans favor making abortion illegal in all or most cases, majorities favor exceptions in cases of rape or when the life of the woman is at risk." Majorities of Democrats and Republicans also think length of pregnancy should matter, with restrictions applying only after some point in the fetus's progression towards viability.

There is no major political grouping in the United States for which a total ban on abortion is the majority position. It's fair to assume from growing dissatisfaction in states that have essentially prohibited abortion, and from expressed preferences over the decades, that a great many of the Americans who were unhappy with the strong protections for abortion under Roe were not looking for prohibition as an alternative; they wanted greater room for restrictions well short of a total ban.

Prohibiting Abortion Goes Too Far

That large gray zone of American opinion on reproductive rights largely explains the failure of the anti-abortion bills in Nebraska (where abortion is currently restricted but legal to 20 weeks) and South Carolina (similarly restricted but legal to about 20 weeks). While both bills included some exceptions for circumstances including rape, incest, and life-threatening medical conditions, the legislation was too prohibitive to win over enough support from conservative lawmakers to achieve passage. That's just as well, given how many residents of states where anti-abortion measures have been implemented voice disenchantment with the new restrictions.

With abortion and so many other matters, prohibitionists are often their own worst enemies. Given an opening to impose dreamed-for restrictive legislation (never mind the limited ability to enforce such laws against the unwilling), they push matters so far that they alienate their own supporters.