In these early and uncertain days of 2017 comes a familiar headline.
Nearly seven in ten Americans oppose overturning Roe v. Wade, according to a poll released this week by the Pew Research Center. All told, 69% of respondents said they did not want to see the landmark abortion decision overturned. And while margins of support split along predictably partisan lines, it still found that 53% of Republican and Republican-leaning respondents wanted to see the basic legal precedent left in place. (Democratic and Democratic-leaning respondents came in at 84%.)
This is consistent with a 2013 Gallup poll, occasioned by the 40th anniversary of the ruling, that found a “Majority of Americans Still Support Roe v. Wade Decision.” And that finding was itself consistent with nearly three decades of polling on the issue.
Americans are largely opposed to efforts to repeal Roe and have been for decades. That alone isn’t enough to save it.
For now, Donald Trump’s opposition to abortion rights has appeared to be more opportunistic than ideological, but that distinction has meant very little in terms of the agenda he’s outlined for his presidency.
The president-elect—who said he wanted to block Planned Parenthood from receiving Medicaid reimbursements even as he acknowledged that the healthcare provider helps “millions and millions of women” and said women should be punished for having illegal abortions—campaigned on a pretty straightforward promise to appoint Supreme Court justices who would overturn Roe.
Trump reiterated this point in a post-election interview with 60 Minutes, in which he responded to a question about the fate of the ruling with a terse, “I’m pro-life. The judges will be pro-life.”
Justice Antonin Scalia died in 2016, leaving a critical vacancy on the court (and also inspiring our future president to speculate that he was maybe murdered). Republicans in Congress were successful in stonewalling President Obama’s efforts to fill the late justice’s spot with a moderate, leaving the next go-round to Trump, who has said that nominating a justice “in the mold of Scalia” is an early priority for his administration.
The simple math here means that a Scalia-sized vacancy will be filled with a Scalia-sized justice, leaving the court’s current makeup intact. But it’s additional court vacancies that make things more complicated—and the fate of Roe less certain.
Three of the court’s liberal and moderate justices—Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer—are also among its oldest. If even one of these justices should leave the court in the coming four years, its ideological composition would shift dramatically.
Or as Michael Klarman, a constitutional law professor at Harvard School of Law, told the Cut: “If Ginsburg or Kennedy or Breyer leaves the court, there will be five votes to overrule Roe v. Wade—and it’s going to be overruled.”
This isn’t a given. The court, even a court loaded with anti-abortion ideologues, may be reluctant to mess with decades of precedent, as other legal experts have noted. But the risk of a full repeal of Roe, which for decades was a distant possibility, becomes much more real if the court takes a dramatic, decades-long swing to the right.
It’s an outcome that a great many Republican lawmakers, both in Congress and the states, would cheer. In fact, many states are already agitating to get the High Court to revisit Roe with a series of laws that directly challenge the ruling. Public opinion on Roe has done, and will likely continue to do, very little to sway that.
Longstanding public sentiment on abortion rights—let’s call it general but passive support—has done virtually nothing to slow Republican-controlled state legislatures and Republicans in Congress from advancing a tide of anti-abortion legislation that has left people across the country without meaningful access to basic reproductive healthcare. And because of gerrymandering or ambivalence or some combination of both, there has been virtually no political cost to lawmakers who have spent the last six years obsessively targeting reproductive health.
All of this is important context for surveys like the one released this week by Pew. The public may support abortion rights in a vague, up or down sense. Press them harder on the issue, and that support can become more nuanced and expansive. But these are not the same things as a willingness to fight for abortion rights—or punish lawmakers who push to criminalize the procedure.
If the 2016 election taught us anything, it’s that a tide of popular sentiment and demographic trends are not enough to protect people’s basic rights. And so a better question to ask next time might be more open ended: What would you be willing to do if Roe was overturned?
The time to think it over is now.