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Abortion Battlefields in a Potentially Post-Roe Political World

Dear Readers: In light of a recent Politico article that features a leaked majority draft opinion from Justice Samuel Alito that would overturn the landmark Roe vs. Wade decision, we are re-running a March article from Crystal Ball Senior Columnist Lou Jacobson. We have made some minor updates to the article to account for a few new developments. In this, Lou looks at how the court’s ultimate decision may impact some key elections this year. Lou also has a similar piece out in PolitiFact, where he surveys existing abortion laws across the country.

The Editors



— If the Supreme Court is indeed set to overturn Roe vs. Wade later this year, it could hypothetically energize Democratic voters in the 2022 midterms. But it’s unclear whether abortion will become a big enough motivator for Democrats to overcome the historical pattern of unfavorable midterms for the party controlling the White House, particularly if concern about the coronavirus pandemic and inflation remains high.

— Our analysis suggests that 7 states are the likeliest to experience political tensions over abortion, because they have majorities or pluralities of voters who favor abortion rights but have GOP-led legislatures who may feel driven to restrict abortion access if the Supreme Court overturns Roe.

— Each of these 7 states has a highly competitive gubernatorial or Senate race on tap for this fall, and several of them have 2 such races.

The states that may have looming abortion fights

Before the year is out, the U.S. Supreme Court seems likely to weaken, or overturn, the landmark decision Roe vs. Wade, which recognized a right to abortion nationally. Could such a decision provoke a political earthquake, energizing Americans accustomed to abortion access to vote against Republican candidates, whose party has sought such a decision for decades?

There could be an impact, though not everywhere equally. If Roe is overturned or weakened, states would have newfound freedom to restrict abortion, particularly in the absence of national action. Many Democrats would prefer to enshrine Roe’s protections into federal law, and they proposed a bill that would do that (and then some). While the measure passed the House last year, it failed to win even a majority in the Senate in February — let alone the 60 votes it would need to overcome a filibuster. So the legislative action this year on abortion, if it comes, likely will come in the states.

Many solidly Republican and Democratic states have planned ahead for a post-Roe world in ways that should suit the wishes of the state’s dominant party, suggesting a continuation of the status quo.

Six solidly red states — Alabama, Arkansas, Mississippi, Oklahoma, Texas, and West Virginia — would snap back to older laws that prohibit abortion if Roe is overturned, according to research by the Guttmacher Institute, an organization supportive of abortion rights. (Three other states that are more politically competitive also have pre-Roe abortion bans on the books; more on these states later.)

Another 8 solidly red states — Idaho, Kentucky, Louisiana, Missouri, North Dakota, South Dakota, Tennessee, and Utah — have passed laws that would significantly curtail abortion rights in the event that Roe is struck down, the institute found. (Another advocacy group, the National Right to Life Committee, which opposes abortion rights, has offered a separate analysis of the post-Roe landscape with broadly similar contours but some slight differences.)

As for blue states, 14 have enacted laws that protect abortion rights in their state if Roe is overturned. These states, according to Guttmacher, are California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington state. Additionally, the competitive state of Nevada, where Democrats control state government, also has such a law on the books.

In the 21 states not cited above, the fate of abortion rights in the event Roe is overturned is less clear. In this article, we will seek to determine which states could see the most friction in the 2022 midterms between their generally pro-abortion rights electorate and their generally anti-abortion Republican Party.

To come up with our list, we looked at 4 factors.

— Does the state have a law in place that would ban or curtail abortion if Roe is overturned?

— Does the state have majority support, or at least plurality support, for abortion rights according to polling?

— Does the state have a GOP-controlled legislature that might be tempted to restrict or ban abortion if Roe is overturned?

— Does the state have at least 1 competitive gubernatorial or senatorial race in 2022?

We found 7 states that check most or all of these boxes, and 3 other states that check some of them.

The 7 states that offer the biggest potential for a Democratic backlash driven by abortion rights are (in alphabetical order) Arizona, Georgia, Michigan, New Hampshire, North Carolina, Pennsylvania, and Wisconsin. Three additional states — Florida, Iowa, and Ohio — are in a second tier, due to a combination of their stronger overall Republican leanings and their lack of highly competitive races in 2022.

A look at public opinion

We made 2 attempts to gauge the degree of public support for abortion rights in these states. The first was to look at the findings of a 50-state Pew study of public opinion on abortion. The upside of using the Pew data is that it asked a consistent question in all 50 states, so states can be compared with each other in an apples-to-apples manner. The downside is that the data were published in 2014, making the findings several years out of date.

To update Pew’s snapshot of public opinion, we searched for more recent polling data about abortion in each of these states. Except for 2 states, we were able to find independent polling from either 2019, 2020, 2021 or 2022. (We found conflicting recent poll results in North Carolina and Florida, so we decided not to draw conclusions about the current state of public opinion on abortion in those states.)

The downside of these recent polls is that many of them are worded differently, so they are less comparable to each other than the Pew results are. Still, we think that by combining Pew’s findings and the more recent polls provides broad backing for the notion that, in these 10 states, there is either majority or plurality support for abortion rights.

Table 1 summarizes what we found.

Table 1: Abortion opinions in key states

Sources: Pew Research Center; * OH Predictive Insights poll, Sept. 2021; ** Atlanta Journal-Constitution poll, April 2019; *** WDIV/Detroit News poll, Jan. 2022; ^ Granite State poll, July 2021; ^^ Franklin & Marshall poll, Oct. 2020; # Marquette University Law School poll, Feb. 2020; ## Des Moines Register/Mediacom poll, Sept. 2021; @ Great Lakes poll, Oct. 2020

In our 7 top-tier states, support for legal abortion in “most or all cases” — Pew’s consistent wording in its polls — was either slightly below 50% (Arizona, Georgia, and North Carolina), between 51% and 54% (Pennsylvania, Wisconsin, and Michigan), or as high as 66% (New Hampshire). Each of the 3 states in the second tier produced support between 48% and 56%.

Except for North Carolina, which had conflicting results, each of our 6 first-tier states produced polls since 2019 that showed between 52% and 83% support for some form of abortion rights; differences in wording helped account for the wide range. In Iowa and Ohio, a majority of those polled supported essentially the same wording as Pew used in 2014 — that abortion should be legal in “most or all cases.”

So the bottom line on the polling is that in each of these states, there is a significant reservoir of public support for continued access to abortion, even though there may be differences in the scope of that access, including how late into pregnancy abortion should be allowed.

Public opinion vs. political power

What could set up a policy clash is that in each of these 10 states, the GOP controls the legislature, and in 6 of the 10 states, there is also a Republican governor.

If Roe is overturned, these Republican legislatures and governors will almost certainly face intense pressure from GOP voters and elected officials to curtail or even eliminate abortion in their state. (In 4 states — Michigan, North Carolina, Pennsylvania, and Wisconsin — Democratic governors could become an obstacle to such efforts.) And if these legislatures pursue stringent abortion restrictions, they could, at least in theory, face a backlash from the substantial proportions of voters in their state who support abortion rights.

Of the 7 top-tier states, Arizona, Michigan, and Wisconsin might be the most likely to see abortion turn into a divisive issue, because each of these states have pre-Roe laws restricting abortion on the books that would snap back into place if the Supreme Court overturns Roe. In addition, Georgia, Iowa, and Ohio have post-Roe laws on the books that are currently blocked by court rulings but that could be enforced if Roe is overturned.

Competitive races in 2022

The last of the factors we looked at involves how many competitive statewide races these states have on tap for 2022.

Of the 7 states in our top tier, 4 have both competitive gubernatorial and Senate races underway: Arizona (the open-seat governorship held by Republican Doug Ducey and the reelection bid by Democratic Sen. Mark Kelly); Georgia (the reelection bids by GOP Gov. Brian Kemp and Democratic Sen. Raphael Warnock); Pennsylvania (the open-seat governorship held by Democrat Tom Wolf and the open-seat Senate seat held by Republican Pat Toomey); and Wisconsin (the reelection bids by Democratic Gov. Tony Evers and Republican Sen. Ron Johnson).

The other 3 states in the top tier have one competitive race each: Michigan (Democratic Gov. Gretchen Whitmer’s reelection); New Hampshire (Democratic Sen. Maggie Hassan’s reelection; Republican Gov. Chris Sununu is a substantial favorite for reelection to a fourth, 2-year term and his race is not considered truly competitive here); and North Carolina (the open seat held by Republican Richard Burr).

All in all, this means that these 7 states collectively have 6 vulnerable Democratic-held seats and 5 vulnerable Republican-held seats — close to an evenly matched partisan balance.

In addition, Arizona, Georgia, Michigan, and Wisconsin also have numerous competitive statewide races further down the ballot, such as races for attorney general and secretary of state.

One of the reasons why Florida, Iowa, and Ohio belong in our second tier is that they are hosting fewer competitive races in 2022. Democrats face uphill battles in trying to unseat Florida Gov. Ron DeSantis, Florida Sen. Marco Rubio, Iowa Gov. Kim Reynolds, Iowa Sen. Chuck Grassley, and Ohio Gov. Mike DeWine. The open-seat Ohio Senate race to succeed Republican Rob Portman could become competitive.

Beyond these 10 states, abortion could also emerge as an issue in Kansas and Nevada. Both states have vulnerable Democratic governors (Laura Kelly in generally red Kansas and Steve Sisolak in more purplish Nevada), and their opponents may seek to tie them to abortion rights, a move that could fire up the GOP base.

Will Democrats be energized to vote if Roe is overruled?

One thing is all but certain: If Roe is overturned, Democrats will try to make abortion an issue in the 2022 midterms.

Whether this turns into a winning issue is far from certain.

For starters, it’s a still a somewhat speculative proposition, starting with this question: Will the Supreme Court actually overturn Roe? Though Chief Justice John Roberts confirmed that Alito’s draft opinion striking down Roe was authentic, he also emphasized that it is not the court’s final decision. With that, the court may reach a compromise that narrows the scope of Roe without overturning it. Something short of overturning Roe could reduce the potential energizing effect for Democratic voters.

Even if the Supreme Court does overturn Roe, not all of the 10 states we’re focusing on will necessarily follow through with legislation to curtail abortion rights. And in some states, Democratic governors or state courts could block them from implementing a new law. The less drastic the changes enacted by Republicans, the less of a political weapon the abortion issue would become for Democrats. It’s also conceivable that Democrats, in their pursuit to protect abortion rights, could make proposals that go further on protecting abortion rights than many voters actually would want. (Generally, polls show that many Americans have nuanced views on abortion policy.)

GOP legislators could also wait until after the midterm elections to pass new laws, which would give Democratic candidates less fodder for their campaigns to highlight.

Then there’s the crucial question: How high will Democrats (or pro-abortion rights Republicans and independents) prioritize abortion on the list of issues that motivate their choices in the voting booth and their willingness to get out and vote in the first place?

Right now, Democrats are facing a difficult political environment — a combination of the historical pattern of parties holding the White House faring poorly in midterm elections and challenges specific to President Joe Biden’s tenure. Voter frustration with Biden’s response to the coronavirus pandemic and inflation could overwhelm any gains Democrats get from voters being energized by an overturning of Roe.

“Ultimately, if Florida banned abortion, I think there would be a modest backlash that would help Democrats,” said Aubrey Jewett, a University of Central Florida political scientist. “But I do not know if it would be enough to flip major statewide races like governor and U.S. Senate, or alter the balance of the GOP-dominated congressional delegation or legislature. The right to abortion is important to many Floridians, but it is not the only issue that they care about, and many are not single-issue abortion voters.”

Indeed, last month, Gov. DeSantis signed a 15-week abortion ban, but it could have little political impact. A recent University of North Florida poll found roughly 55% opposition to the legislature’s proposed ban, and that rose to 60% when respondents were told that the bill has no exceptions for rape or incest. But Republicans generally remain ahead in recent polling in the gubernatorial race.

It’s much the same landscape in Pennsylvania, said Muhlenberg College political scientist Christopher Borick. “I’m skeptical that the boost they would get would offset the cyclical advantages that the GOP carries into the midterms here,” he said.

Meanwhile, in a Republican-trending state like Iowa, being aggressive on abortion does not seem to have hurt Republicans, regardless of what the opinion polls say about residents’ views on abortion.

“While the disconnect suggests Democrats could benefit by energizing voters, Republicans have pushed hard on these abortion restrictions and have only increased their majorities in the legislature” in recent years, said Christopher Larimer, a University of Northern Iowa political scientist.

In New Hampshire, despite voters’ strong historical support for abortion rights, “if the pandemic is still raging in the fall and/or inflation is still high and/or Biden’s approval numbers are still awful, I don’t know that the issue will outweigh that in the big picture,” said Saint Anselm College political scientist Christopher Galdieri.

As an aside, yesterday morning, Gov. Sununu, a Republican running in a clearly pro-choice state, affirmed his support for Roe, although Democrats will note that he signed off on a budget bill last year that included some abortion restrictions.

Perhaps the most promising avenue for Democratic gains is that abortion politics could energize the same types of voters that Democrats have increasingly been winning: suburbanites, including women, who a decade or two ago might have voted Republican.

“In a state as close to the razor’s edge as North Carolina, anything can be the difference-maker,” said Christopher Cooper, a Western Carolina University political scientist. “It certainly won’t turn the state bright blue, but it could lessen the blows Democrats are expected to take in 2022.”

Aside from trying to flip an open U.S. Senate seat, North Carolina Democrats will be defending their narrow majority on the state’s Supreme Court. 2 seats on that state’s high court will be up this year, and both are currently in Democratic hands.

Still, for an issue that has been so hard-fought and that has driven so much political controversy over half a century, it’s impossible to rule out the possibility that the issue could be so overshadowed in 2022 that it’s resolved — at least in the short term — with a whimper rather than a bang.

Louis Jacobson is a Senior Columnist for Sabato’s Crystal Ball. He is also the senior correspondent at the fact-checking website PolitiFact and is senior author of the Almanac of American Politics 2022. He was senior author of the Almanac’s 2016, 2018, and 2020 editions and a contributing writer for the 2000 and 2004 editions.