Align Abortion Law with Majority Support

T wo years after the Supreme Court’s Dobbs decision, which overturned Roe v. Wade and returned the abortion issue to the people and their elected representatives, many are struggling to accept the reality of republican government: Strong public support is necessary for the effective enforcement of the laws.

During the 1858 Lincoln–Douglas debates, Abraham Lincoln told the audience in Ottawa, Illinois: “In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.”

Knowing this, Lincoln was a careful student of public sentiment, especially on slavery during the 1850s and his presidency.

One of the most compelling applications of this lesson to abortion in the U.S. is the experience of John Harlan Amen. Amen was New York State’s assistant attorney general in the 1930s and early 1940s until he went to Nuremberg in 1945 to serve as a war-crimes prosecutor.

Amen told a New York conference on abortion in June 1942 that when “the moral or common sense of the community looks upon criminal abortion with complacency or toleration, it is most difficult for prosecuting officials and courts to extend themselves to the utmost in an effort to secure convictions.” By this, he meant the conviction of abortion purveyors, since the states uniformly prosecuted abortionists for abortions, not the women who received them.

Amen elaborated:

We all know that public opinion plays a large part, not only in placing laws on the statute books, but also in their enforcement. When the moral and common sense of the community are in accord that some particular kind of behavior is wrong, the problem of enforcement becomes relatively simple. . . . On the other hand, when public opinion is lukewarm or divided, the problem of law enforcement is tremendously increased. . . . I think it safe to say that the greatest obstacle so far encountered to the legal control of abortion is public indifference.

However, when there was public support, as there was in New York in the 1940s and 1950s, Amen’s investigation and policy-reform proposals resulted in successful prosecutions of abortionists until the late 1960s. New York prohibited abortion unless it was done “under a reasonable belief” that it “was necessary to preserve the life” of the woman, until it was amended in 1970. Though some will consider seeking public support a “compromise,” that description is overused and widely misunderstood. A compromise is a mutual concession to reach an agreement. Nothing is conceded when there is an overwhelming obstacle beyond control, nor when unsurmountable social or political barriers prevent progress.

If an abortion law on the books is unenforceable (for legal or political reasons that are beyond control or amelioration), it is ethical to adopt an imperfect limit on abortion that is enforceable.

Some states with early gestational limits — before and since Dobbs — have legislated without sufficient public support.

As Ryan Anderson and Alexandra DeSanctis acknowledge in their 2023 book, Tearing Us Apart:

A majority of Americans are not yet supportive of laws protecting unborn children from the moment of conception. . . . This is, in part, what has made ballot measures so challenging. . . . If presented with what appears to be a choice between ‘all or nothing’ on abortion, most Americans will choose ‘all.’

That should not be surprising. Decades of Gallup (and other) polling data show that, while there is strong national public support for abortion limits after 12 weeks, abortion limits under 12 weeks lack majority support nationally, though support may be stronger in some states or locales.

More specifically, one year after Dobbs, a Gallup poll “found about two-thirds of Americans saying it should be legal in the first trimester (69%), while support drops to 37% for the second trimester and 22% for the third. Majorities oppose legal abortion in the second (55%) and third (70%) trimesters.” Among women, 52 percent opposed legal abortion in the second trimester, while 40 percent supported it.

While public opinion doesn’t establish the moral standard, as Lincoln readily acknowledged, it does establish the enforceable standard. It inevitably shapes the political context that allows or blocks legislation and law enforcement. The Alabama legislature’s rush last April to repeal all responsibility by IVF laboratories for the negligent destruction of embryonic humans is a recent example of the collapse of legislative will in the face of perceived public opinion.

While Roe v. Wade was in effect, there was majority support for marginal regulations of abortion. But before Dobbs, there was no need to build majority support for gestational limits because they were unenforceable, and the real practical effect could not be felt nor public support precisely determined.

If a state cannot show that a majority of voters support a certain gestational limit, they should seriously consider establishing the legal limit at a point where there is strong majority support.

In turn, pro-life legislators could recognize the need for majority support while expressing hope for greater legal protection. They might say something like, “I’m pro-life. I will support any limits on abortion that the people of my state will support. But I will always work to strengthen public opinion and public support for laws that protect women and children from the tragedy of abortion and its risks.”

Each state needs to establish a beachhead, a secure, enforceable limit supported by public sentiment, before further progress in protecting children — and women from the prevalence of coerced abortion — can be made.