Polls show Americans favor limiting abortions to the first trimester in most cases, but that’s not where lawmakers are heading in the aftermath of Roe v. Wade.
Since the Supreme Court freed states to craft their own abortion laws, the rush has been to the fringes, not the center, as Republicans in red states move to impose restrictions and Democrats in blue states hustle to sweep them away.
The result is a burgeoning all-or-nothing patchwork where states like Texas, which bans almost all abortions, and New Mexico, where virtually anything goes, are the norm – and middle-of-the-road states like Arizona, which draws the line at 15 weeks and six days’ gestation, are increasingly the exception.
“We have essentially two nations, particularly on cultural issues like abortion,” said Floyd Ciruli, director of the Crossley Center for Public Opinion Research at the University of Denver.
A big reason lies with the rise of one-party rule: Thirty-nine states have “trifectas,” meaning the same party controls the governor’s office and both houses of the legislature. Of those, 22 are led by Republicans and 17 by Democrats.
Those 39 trifectas are “more than at any other point from 1992 to 2022,” according to Ballotpedia.
“When the Supreme Court lifted Roe v. Wade, they made it quite clear that [abortion] was now up to the politics of the states. And the politics of the states right now are polarized,” Mr. Ciruli said. “There are about 15-20% on each side who want absolutely no restrictions or absolutely no abortions unless it’s for the life of the mother. But those two groups have control of the political parties in these states.”
The divide is stark. Less than a year after the high court’s ruling in Dobbs v. Jackson, 13 states are enforcing laws that ban abortions except to save the mother’s life. Another four states have had similar laws blocked temporarily by courts, as shown on AbortionFinder.org’s state-by-state analysis.
Then there’s Georgia, which has a heartbeat law barring most abortions after six weeks’ gestation. Florida Gov. Ron DeSantis this month signed a heartbeat bill that is awaiting the outcome of a court ruling on the state’s existing 15-week gestational limit.
At the other end of the political spectrum are the six states and District of Columbia with no gestational limits. Behind them are more than a dozen states that permit abortion until viability, or when the baby can survive outside the womb, usually defined as 24-26 weeks’ gestation.
The caveat: Most of those laws include post-viability exceptions to protect the life and health of the mother, which the Supreme Court has said includes mental and emotional health. In practice, that means what pro-life advocates describe as abortion on demand through all 40 weeks of pregnancy.
After enacting or erasing restrictions, some states have gone further by reinforcing their stances. Mississippi enacted expanded tax credits for pro-life pregnancy centers and adoption. New York pledged $25 million to abortion providers.
Taken together, the result is that about four-fifths of the states have laws on the books that are either more stringent or less stringent than the policies favored by most Americans.
As Democrats point out, polls show most adults want to keep abortion legal. Republicans counter that surveys also find Americans support significant restrictions, including a first-trimester cut-off for most procedures.
The 2021 Associated Press-NORC Center for Public Affairs poll showed 61% favor keeping abortion legal in “most or all circumstances in the first trimester,” or about 13 weeks’ gestation. At the second trimester, however, 65% said abortion should be illegal in most circumstances, a figure that rose to 80% in the third trimester.
A Marist Poll for NPR/PBS released last month showed that 66% want abortion limited to the first trimester at most, while 22% said abortion should be allowed at any time. The survey also found 59% opposed and 40% in support of overturning Roe v. Wade.
Translate the polls to policy, and the result would probably look a lot like North Carolina Senate Bill 20, which lowers the gestational limit for most abortions from 20 to 12 weeks. The bill includes exceptions for rape, incest and medical emergencies.
Even so, the measure touched off a fierce partisan battle, passing the Republican-controlled House and Senate with no Democratic votes.
Gov. Roy Cooper, a Democrat, vetoed the legislation at a Saturday rally in downtown Raleigh, calling it a “dangerous abortion ban.”
“Let’s be clear — this bill has nothing to do with making women safer, and everything to do with banning abortion,” Mr. Cooper said at the rally.
Indeed, there is little appetite for compromise in the current political climate.
Sen. Lindsey Graham, South Carolina Republican, discovered that last year after introducing a bill that would limit most abortions to 15 weeks’ gestation with exceptions for rape, incest and risks to the “life and physical health of the mother.”
Senate Republicans, irked at Mr. Graham for drawing attention to the issue, said the details should be left to the states. Outraged Senate Democrats flayed the bill as a “national abortion ban.”
Supporting the bill was a coalition of leading pro-life groups, including Susan B. Anthony Pro-Life America, which cited polls showing that 75% of women “support legislation to protect babies by at least 15 weeks.”
Kelsey Pritchard, SBA Pro-Life American spokesperson, said blue states are “moving far beyond what Roe ever did.”
“They’re not really interested in going back to the Roe status quo,” Ms. Pritchard said. “They’re not even in line with Europe at this point. Their policies are just totally extreme and not in line with where the American people are.”
Democrats contend that the extremism lies with red states seeking to abolish abortion rights following the Dobbs decision.
“Their ultimate goal is clear: total ban on abortion nationwide,” Senate Judiciary Committee Chair Richard Durbin said at an April 25 hearing. “So instead of ending the debate on abortion, Dobbs was really the beginning of a different debate: How far will the war on women’s health go before we say, ‘Enough is enough?’”
If Democrats appear less interested in reaching across the aisle, it may be because so far, they’re winning.
The pro-choice side swept all five abortion-related state initiatives last year, a triumph that has fueled a surge of signature-gathering campaigns aimed at expanding abortion access on the 2023 and 2024 state ballots.
New York could become even more abortion-friendly with a proposed constitutional amendment that bans discrimination based on “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” The measure goes before the voters in 2024.
Other ballot campaigns to enshrine abortion access into law are underway in Ohio, Florida, Michigan and South Dakota. First up is Ohio, where pro-choice activists are moving to collect the 413,000 valid signatures needed to place a proposed constitutional amendment on the November ballot.
The measure, known as the Reproductive Freedom with Protections for Health and Safety Act, would add a right to abortion in the Constitution while allowing a fetal-viability limit that includes an exception to “protect the pregnant patient’s life or health.”
In its 1973 Doe v. Bolton decision, the Supreme Court defined “health” to include mental health, specifically factors such as “emotional, psychological, familial, and the woman’s age,” an exception that pro-life advocates say renders the “health” failsafe virtually meaningless.
Pro-choice advocates counter that abortions after 21 weeks represent only 1.3% of all procedures, based on Centers for Disease Control and Prevention data, while abortion foes argue that the actual total is unknown, given that California, Maryland and New Hampshire don’t report abortions.
Even if the 1.3% figure is correct, “this means that there are more than 11,000 late-term abortions every year – that is, those that take place after the child could live outside the womb,” said the pro-life Charlotte Lozier Institute.
Meanwhile, the pro-choice Guttmacher Institute opposes any gestational limits.
“While abortions after 20 weeks represent about 1% of all abortions, it is critical that people have access throughout pregnancy to protect bodily autonomy and ensure equity,” Guttmacher said in a Jan. 12 post. “Any gestational age ban may delay or deny access to abortion care.”
Whatever the polls may say about abortion, expect both sides to remain locked in at least through the November 2024 election, said Mr. Ciruli.
“Abortion is not going to go away in terms of its politics because the Democrats do think it’s useful,” he said. “And Republicans, their problem is that they have a constituency that’s so committed to it and so observant and so engaged, I don’t see how they can possibly walk away from it.”