I question Pew on this: "59% currently think that abortion should be legal in all or most cases." Gallup goes much deeper in their polling. Gallup Poll For example, when Gallup asks, should abortion be legal during the FIRST TRIMESTER "when the woman does not want the child for any reason?" Only 45% say yes. A majority, 53%, say no. I often see Pew research numbers in mainstream media, but rarely Gallup. Part of the reason is that the Gallup polling is so much more comprehensive...and you have to dig for a clearer picture. Another reason is that the media is overwhelmingly pro-choice and the Pew numbers conform more to most journalists' preconceptions.
I've put a link to this post on our Topic Page on this kind of referendum on our website Peace and Life Referendums, https://peace-and-life-referendums.org/topic-state-constitutions/. (We being the Consistent Life Network.) Since we were supporting the Louisiana referendum last November, we also put up some of the series of the one-minute videos that the Louisiana campaign put on social media, so you can see a good example of how to do that technique in future referendums.
Update: The Kansas legislature did just this last January get its act together to put the NRAA on the Kansas ballot. It's to be voted on by Kansans in the August 2, 2022 election.
Seriously? I might agree that Personhood “amendments” are harder to pass than the abortion neutrality amendments, I would say, so what?! We aren’t a democracy and deciding the humanity of any group of people shouldn’t be put to a vote...it’s why we live in a constitutional representative republic. So we can step in against the mob and say it’s not OK to own people that are darker than you or kill people that are you set or less developed then you. This entire article continues the spineless position that accepts the supremacy of the courts. When can we start treating Roe, Doe, and Casey as reprehensible as we do Dredd Scott and start demanding our elected representatives (aka our employees) treat them the same way, ignore them for the evil olio is they are?!
I don't think it's going to be effective to try to convince politicians to just ignore Supreme Court cases. That's not how a country governed by laws works. So either we try to convince our culture that those cases are wrong so they can be overruled, or I guess the other option would be something like a civil war. Given that I think pro-life people could become a lot more persuasive in the way they argue against abortion, I don't think we should go to war.
I generally agree with your argument (that NRAA is a better strategy for pro-lifers than personhood), but I have a few issues:
The Alabama ballot measure went further than a NRAA, as it indicated that the state would "recognize and support the sanctity of unborn life and the rights of unborn children, most importantly the right to life in all manners and measures appropriate and lawful" (it also specified that abortion rights were not constitutionally protected). The word "personhood" was not in the text, but it wasn't in Ireland's 8th Amendment either. Yet that one very much protected all unborn children.
I'm a bit confused about your take on heartbeat bills. If, as you claim, Roe v. Wade really is on the verge of being overturned (personally, I think now is a better opportunity than any other in recent memory and it's not likely the Supreme Court gets more anti-Roe justices any time soon) then it seems the only way to do so is to pass a new law and successfully argue before the courts that the law is constitutional but previous abortion precedents are incorrect and unworkable. The prevailing strategy in the Trump and post-Trump era seems to be to pass a wide variety of bans on pre-viability abortion (some at 12 weeks, some after the heartbeat is detectable, some at fertilization, both with and without rape exceptions) in the hopes that something gets through to the Supreme Court. Not going big in order to avoid a ruling we won't like made sense during the Obama era (when the court had a solid pro-Roe majority), but it seems out of date now. As such, NRLC and other mainstream pro-life groups have fully embraced heartbeat legislation after previously refusing to support it.
The claim that 70% of Americans support Roe is a dishonest abortion lobby talking point and pro-lifers ought to forcefully push back against it, not help them make their case. People may say that they do in a poll, but that's only because they don't know anything about Roe v. Wade. When the question turns to whether abortion ought to be legal under all/most/a few/no circumstances (Gallup), a small but consistent majority chooses one of the latter two options. Solid majorities oppose second and third trimester abortions (a position incompatible with supporting Roe) and even in the first trimester, most reject the idea that a woman should be able to have an abortion when she "does not want the child for any reason". Abortion advocates will use this talking point when lobbying politicians and writing legal briefs (public opinion is apparently important to at least some Supreme Court justices when they make their decisions), and they'll come across as more credible if even pro-life sources are regurgitating it. Don't do it.
Hey Navi! Thanks for your comment. A few clarifications.
I think you misunderstood something about the piece. We don't actually think Roe is on the verge of being overturned. I agree with you that it's closer than it has been in a while, but sadly I don't think it's close enough to overturn Roe and Casey, based on recent SCOTUS rulings on abortion cases, even if ACB is with us. Given that, I think it was a strategic mistake to pass heartbeat bills in 2019, but good pro-life people can disagree about things like that.
On the 70% poll, we said in the next sentence what you're saying. Here they are again: "In 2013, 70% of Americans opposed overturning Roe v. Wade. At that time, however, only 62% of Americans knew that Roe dealt with abortion." Given that, we think the poll numbers that we linked to later in the piece are more accurate to getting at where Americans are actually at on abortion.
I also think the assessment that Roe is definitely about to be overturned is too optimistic. However, I still hold that the likelihood of it happening now is greater than it was at any time since 1991 and greater than it will be in 2026 or even 2031. The only way we net another anti-Roe justice on the court is if Justice Breyer somehow decides not to retire during the Biden presidency, a Republican wins in 2024 or 2028 (they're having a hard time getting their act together lately, to put it mildly) and then he leaves the court. Or, less likely, Justice Sotomayor leaves the court (Trump seemed to think he would get to name her replacement because of her diabetes, but no serious source actually thinks she has significant health issues or is likely to leave anytime soon). All this while assuming neither Justice Thomas nor Justice Alito dies, retires, goes to jail, or has to step down due to medical or family reasons during a Democratic presidency. Could happen, but there's a lot more exposure on the anti-Roe side than on the pro-Roe side. Put differently, it's quite easy to do worse than the current nine justices. But it's hard to do much better.
But one could at least make a credible argument that right now, we have enough justices to overturn Roe. And it's a more credible argument now than it was in 2019. Thomas is anti-Roe, Barrett almost certainly is (openly pro-life, former Scalia apprentice, originalist, repeatedly refused to call Roe settled law), and listening to Alito's recent Federalist Society speech (as well as looking at his record) one certainly doesn't expect him to strike down any abortion restrictions. The Chief Justice is too obsessed with the legitimacy of the Supreme Court to be the fifth justice in favour of overturning one of its worst decisions (something I think we've known for quite some time). That leaves Gorsuch and Kavanaugh. Both upheld Louisiana's law, the former identifies as an originalist, and the latter praised the dissent in Roe v. Wade. Neither have called for it to be overturned, but justices rarely consider overturning a precedent unless one of the parties in the case ask them to (neither did in the June Medical case). More concerning are the fact that both might defer too much to stare decisis and Senator Collins' speech about how she thinks Justice Kavanaugh will be like O'Connor, Kennedy, and Souter. A lot of things need to line up, but it's far from impossible. And if there's even a 10% chance that it all works out, I think the benefits of challenging Roe easily outweigh the risks. We're not going to get that 10% again any time soon.
My comment on the 70% poll was in reference to the last paragraph of the "WHAT’S WRONG WITH PERSONHOOD AMENDMENTS?" section, not the "brief history" section. I see you put the number into proper context in the other section.
Hey Navi! Okay, I think you're making a very strong case for taking the shot at Roe and hoping for the best. I think you're probably right that this is the closest we'll get for a while, at least as far as the makeup of the court goes. An argument could be made that we'd be in better shape if the court makeup didn't change, and they upheld some incremental chipping away at Roe/Casey decisions, and then we went for it. But that's a level of 4D chess that gets really complicated really fast, especially given how long it can take to get a case to SCOTUS.
I think you might be right. David French made a similar argument a few years ago, that we need to get the court on record on abortion in general since we really haven't since Casey. I disagreed with that take although I agree with him about 95% of the time. Either way, it's not a dumb argument, nor is yours. I think my soft opinion remains that we shouldn't take the shot unless our odds are better, even if those odds don't get better for a long time, because adding more precedent to a case that frankly already has a lot of precedence working against us could theoretically make it take longer before we actually get to overturn Roe/Casey. But I don't hold that opinion strongly, and I think you've made a very compelling argument. :)
Totally fair point about the other reference to the 70% stat. I missed that during my editing pass and take responsibility. I'll add a quick edit that reminds people of the point like we did at the top of the article. Thanks for pointing that out!
- I also think the assessment that Roe is definitely about to be overturned is too optimistic. However, I still hold that the likelihood of it happening now is greater than it was at any time since 1991 and greater than it will be in 2026 or even 2031. The only way we net another anti-Roe justice on the court is if Justice Breyer somehow decides not to retire during the Biden presidency, a Republican wins in 2024 or 2028 (they're having a hard time getting their act together lately, to put it mildly) and then he leaves the court. Or, less likely, Justice Sotomayor leaves the court (Trump seemed to think he would get to name her replacement because of her diabetes, but no serious source actually thinks she has significant health issues or is likely to leave anytime soon). All this while assuming neither Justice Thomas nor Justice Alito dies, retires, goes to jail, or has to step down due to medical or family reasons during a Democratic presidency. Could happen, but there's a lot more exposure on the anti-Roe side than on the pro-Roe side. Put differently, it's quite easy to do worse than the current nine justices. But it's hard to do much better.
But one could at least make a credible argument that right now, we have enough justices to overturn Roe. And it's a more credible argument now than it was in 2019. Thomas is anti-Roe, Barrett almost certainly is (openly pro-life, former Scalia apprentice, originalist, repeatedly refused to call Roe settled law), and listening to Alito's recent Federalist Society speech (as well as looking at his record) one certainly doesn't expect him to strike down any abortion restrictions. The Chief Justice is too obsessed with the legitimacy of the Supreme Court to be the fifth justice in favour of overturning one of its worst decisions (something I think we've known for quite some time). That leaves Gorsuch and Kavanaugh. Both upheld Louisiana's law, the former identifies as an originalist, and the latter praised the dissent in Roe v. Wade. Neither have called for it to be overturned, but justices rarely consider overturning a precedent unless one of the parties in the case ask them to (neither did in the June Medical case). More concerning are the fact that both might defer too much to stare decisis and Senator Collins' speech about how she thinks Justice Kavanaugh will be like O'Connor, Kennedy, and Souter. A lot of things need to line up, but it's far from impossible. And if there's even a 10% chance that it all works out, I think the benefits of challenging Roe easily outweigh the risks. We're not going to get that 10% again any time soon.