In the wake of Dobbs v Jackson, state governments are likely to now have the discretion to fully ban abortion — and many are poised to do so. Thirteen states have trigger laws in place to ban abortion after Roe is overturned. According to the Guttmacher Institute, another 13 states are likely to severely limit the availability of legal abortions in the coming months.
The Supreme Court majority has justified the decision by saying it is returning the “authority to regulate abortion... to the people and their elected representatives”. But as our data shows, there are big differences between what the people in many states want, and the laws that their legislatures have adopted. Many states with draconian anti-abortion laws have strong pro-abortion rights majorities.
States have become battlegrounds in America. Since the 1990s, state policy has polarised. Red states have reduced restrictions on gun ownership and placed new restrictions on labour unions, while blue states have increased environmental regulation and taxes on high earners. This state policy polarisation was made possible in part by gridlock in Washington. The Supreme Court also facilitated state policy polarisation by giving states more discretion in many policy areas, for example by allowing state governments to reject Medicaid expansion through the Affordable Care Act in NFIB v Sebelius.
That has consequences for abortion rights. About 60pc of Americans support continuing to make abortions legal — more than the level of support for same-sex marriage when the Supreme Court struck down state bans in Obergefell v Hodges in 2015. And it has consequences at the state level. Many Americans will live under new abortion bans that they do not support.
Many anti-abortion rights states have strong pro-abortion rights majorities. We set out to find out what percentage of people in each state support legal abortions. Drawing on work by one of us and Devin Caughey, we use micro-data from publicly available probability polls from academic surveys such as the American National Election Survey and media polls we obtained via the Roper Center from organisations such as the Pew Research Center, ABC News, PRRI and the Kaiser Family Foundation.
We focus on polls that ask whether respondents support banning abortion “in all or most cases” or keeping it legal in all or most cases. This means we exclude some polls that provide an ambiguous middle option about whether abortion should be legal under “some circumstances”. We then use a dynamic multilevel regression with post-stratification model that squeezes as much information as possible from the data to make sure we have accurate estimates for each state.
We find that a majority of the public in about 40 states support legal abortion rights. Only about 10 states have majorities that oppose allowing abortions. In some of these red states, such as Louisiana and Arkansas, bans on abortion may bring policy into line with the views of the majority of their public.
But this increase in congruence between policy and public preferences in red states will probably be outweighed by the decrease in congruence in states with pro-choice majorities. Our analysis of polling data suggests that more Americans will live under an abortion policy that is out of step with their preferences, with consequences for democratic representation. This is largely because clear majorities of citizens in purple states that are likely to ban abortion — like Arizona, Georgia, Michigan, Wisconsin and even Iowa — support abortion rights, as our figure shows.
If reproductive rights follow the trend of previous controversial policies, it is likely that many purple states will eventually fall into step with the views of voters in their states and liberalise their abortion laws. So bans on abortion in these states might not survive in the long term.
The big question is whether majority opinion will shape policy in the shorter term. That partly depends on the quality of democratic institutions — the extent to which institutions allow people to elect legislators who reflect their policy preferences. In many of the purple states likely to ban abortion, gerrymandered legislative maps have bolstered Republicans’ state legislative majorities.
For instance, Democrats won more than 50pc of the state-wide vote in Wisconsin and Michigan multiple times over the past decade but failed to win legislative majorities in even a single election. This gerrymandering means that state legislators in those states are largely insulated from a backlash to an abortion ban.
Notably, other Supreme Court decisions have made it much harder to challenge gerrymandered legislative maps. The Supreme Court majority says that its decision returns authority to the people and their elected representatives. In many states it is in fact providing politically insulated legislators with the opportunity to enforce anti-abortion policies opposed by a majority of their population.
State governments are playing an increasingly influential role in the lives of Americans in a wide range of policy areas. Now that the Supreme Court has overturned Roe v Wade, state governments will become even greater forces in shaping the lives of Americans.
Jake Grumbach is a political scientist at the University of Washington. Christopher Warshaw is a political scientist at The George Washington University
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