I wonder what the results would be if the question were asked in a way that people would understand the ramifications of overturning Roe - that the states would then have power over the matter instead of the courts. Something like "If Roe v Wade were overturned, the abortion issue would then be fought in the state legislatures instead of in the federal courts. Do you think the states should decide the issue of abortion, or the federal court system?"

Polls mean precisely nothing. It is well established that the answer can be dictated by slanting the question one way or t'other. Further people rarely give their true feelings in pols because the sense of irrelevance is prevalent.

I don't think true conservative-movement legislators could get away with implementing a federal statute outlawing abortion, since the primary argument against Roe has been that it should be up to the states, not the courts.

"what's to preclude Congress from passing laws to restrict or outlaw abortion?"

The fact that the Republican Party would go the way of the Dodo in 90% of America if it tried to outlaw abortion outright?

Having said that, the fair-weather federalists in the GOP would not, in practice, leave it up to the states any more than the Democrats would.

Sean~

That was a joke, right? You really think that conservatives would not support federal legislation to ban abortions because the prior argument was it should be left to the states?

The easiest jurisdictional hook is the one in the Securities Exchange Act - Procure an abortion through a means of interstate commerce. To the extent that the person used the internet or a telephone or the mail to, say, make an appointment, then that is enough of a jurisdictional hook (at least in securities law.

Hold on a second. I am fan of the New York Times's news coverage and feature reporting, but the Times Editorial Board knew exactly what it was doing in this case. Here's why:

The editorial in question here, published on January 13, stated, "With nearly 70 percent of Americans saying in a recent Harris poll that they would oppose Judge Alito's confirmation if they thought he would vote against constitutional protection for abortion rights . . ." The point of Professor Volokh's post seems to be that whether or not the NYT stated the Harris poll properly, that figure still may reflect the views of the American populace.

But then look at a New York Times editorial published on Sunday, January 8 ("Judging Samuel Alito"). There, the Times stated, "In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito's nomination if they thought he would vote to make abortion illegal - which it appears he might well do." (italics and boldface added)

Now, the New York Times Editorial Board is not full of idiots. They are very intelligent people who are well ensconced in current events and controversies. The Board has a member who is a Harvard Law graduate and its resident "legal expert" (Adam Cohen). The Board members know as well as anybody who carefully follows major issues like abortion that overturning Roe will not "make abortion illegal." And yet not only did they include this charged (and inaccurate) statement in their pre-hearings, Sunday editorial, they endorsed it by adding the scare tactic, "which it appears he might well do." That's not "imprecise reporting," as Professor Volokh suggests; that's flat-out advancement of a factual statement they almost certainly know is false.

That's why I am much less inclined to chalk the Times's January 12 editorial up to "imprecise reporting." More likely, I am betting that it received some flak for quoting the Harris poll verbatim in its January 8 editorial, since it is so obviously wrong. As a result, in its January 12 editorial, it tries to fudge the poll's question into something that is, as Professor Volokh points out, closer to reality. But whether it reflects the country's actual position on abortion restrictions or not is a very different question from whether the NYT Editorial Board is engaging in misleading demagoguery. That, I think, is much less disputable.

On a final note, I add that in NYT news articles, if a source is quoted as propounding the above inaccurate abortion logic (i.e., that overturning Roe will make abortion illegal), the reporter will insert a statement correcting that fallacy. See, for example, a January 12 article ("Democrats Take Aggressive Tack; Alito is Unfazed"):

Mr. Durbin responded that he was "concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion, that would make it illegal in this country, would criminalize the conduct of women who are seeking to terminate pregnancies for fear of their lives and the doctors who help them."

Overturning Roe would not make abortion illegal but would leave the question in the hands of states.

It appears that the Times's reporting is subject to greater factual scrutiny than its editorializing. And to think, only a couple years ago, it was the Times's reporting that had the credibility problem.

Chris Lawrence ~
Unfortunately, very few true federalists hold office. Most are policy wonks working in a think tank somewhere.

Depending on how the vote goes - what's to preclude the US Supreme Court from finding that abortion is murder and thus outlawing it all together? Or once stripped of constitutional protection by the Court, what's to preclude Congress from passing laws to restrict or outlaw abortion? As others have noted, the assumption that overruling Wade will "merely" lead to battles at the State level assumes that abortion opponents will simply rest at fighting on a state-by-state basis. But maybe they'll just got for a federal statute outlawing or restricting abortion.

Hard to see how SCOTUS could "find that abortion is murder" since the Constitution does not create an offense of murder, nor is there any general federal murder statute, nor would SCOTUS have the last word on the meaning of a state murder statute. Absent Roe v. Wade there is nothing constitutionally stopping the feds from passing a statute outlawing abortion entirely. As we now know from Raich v. Ashcroft, interstate commerce is anything the feds say it is and a prohibition on abortion could easily fit within the now limitless Commerce clause. This is one of the political consequences of unlimited federal jurisdiction. If the matter were really up to the states, some would pass relatively strong restrictions, others would pass few or no restrictions, and some might outlaw abortion entirely. And that's how things would continue, with periodic attempts by the outlawing states to hinder women from those states from travelling to another state for an abortion. Given unlimited federal jurisdiction however, those interest groups who think abortion is far more important than a proper reading of the Commerce clause will not be able to just accept the fact that a particular state will never be convinced that their restrictions on abortion are too strict, or no strict enough. Instead they'll go to the feds and demand a statute mandating the restrictions (or lack of restrictions) on abortion which they would prefer to see, with that mandate applying everywhere in the country, regardless of what a particular state may wish. It's a recipe for never ending tension, much like Roe v Wade itself.

Sean Elgin,

How many true "movement conservatives" think Raich came out wrong?

Abortion polls are notoriously slippery. If you ask people whether they would ban abortions after the first trimester, or sex-selection abortions, or whether they would require spousal notification -- you get huge majorities. This can only mean one thing: There is a broad slice of people who are deeply confused: They claim to want more abortion regulation, yet they do not recognize that it would require overruling or severely cutting back on Roe for those regulations to be upheld.

Stuart Taylor has written on this: Stuart Taylor, How the 'Conservative' Supreme Court Leans to the Liberal Side, National Journal, July 8, 2000, p. 2207.

This and other polls suggest that the Court is more liberal than the public on abortion. To be sure, the data show considerable public ambivalence and some logically inconsistent responses to differently worded questions. While the Newsweek poll found by 62 percent to 31 percent that respondents wanted any new Justices to uphold Roe and continue "protecting a woman's right to an abortion," the Los Angeles Times survey found that only 43 percent of respondents expressed support for Roe, down from 56 percent in 1991.

Such disparities may reflect some confusion about exactly what the Court actually did in Roe, and what would happen if the decision were overruled. Small wonder, when journalists such as Time's Eric Pooley tell their readers that by "overturning Roe vs. Wade," a more conservative Court would "ban abortion." In fact, no Justice in history has suggested that he or she would ban abortion. As all scholars and most journalists know (but rarely say), overturning Roe would ban nothing, but rather leave it to elected officials to decide how (if at all) to restrict abortion. And most states would continue allowing fairly broad abortion rights.

[COMMENT DELETED for being ridiculously off-topic. Minnie and all others, please keep comments relevant to the post they're commenting on, or at least to the discussion as it has evolved since the post. Don't just post something seeking a response on a completely unrelated topic.]

Every non-lawyer I've ever talked to about Roe believes that a reversal of Roe would mean that abortions would be illegal ("like they were before"). Subtle needs for legislative intervention before that happened are just not seen. For this reason, the two polls discussed are really asking the same question in the public's mind.

Perhaps a better question would be, who do you think should decide if abortions should be legal--the courts or the voters?

All of this is largely academic as there are now at most 4 votes to reverse Roe, and I don't think that Alito and Roberts are true believers in the Scalia mold. If Stevens goes, then I'd watch out.

More likely is that all the minor restrictions will be upheld as not being an undue burden(ie notification, pba, informed consent, etc...). The core holding will not be disturbed and the 95% of abortions that occur in the 1st trimester will remain protected. On the fringe some change will occur, that'll satisfy the natives, and the GOP will keep using the pro lifers to get votes. They know thatreversal of roe and criminalization of abortion will not be good for the party, which cares more abuot money than it does about fetuses.

Also, why do people assume that if Roe is reversed it's over? Scalia is 70. The dems will get more appointments and it'll just be reinstated. In the end, pre-viability abortion and health/life related abortion is pretty much here to stay in one form or another.

Regarding real conservatives or federalists, I consider myself both and disagree with the Raich decision, even tho' I am opposed to legalised marijuana. I am also strongly opposed to legalised euthanasia, but support the right of my state, Oregon, to enact it contra AG Ashcroft.

Abortion is an issue properly belonging to the states. It is not an interstate commerce question. I would object to the SCOTUS declaring abortion unconstitutional. I also believe that it would be good for our politics if Roe were overturned, as it would return a social issue to the people of the several states and eliminate the unfruitful debate we currently have regarding it at the federal level.

Roe is a failed experiment, it didn't settle anything.

Perhaps two decades ago, the sociologist/demographer Judith Blake Davis did an analysis of poll results that was published in the peer-review journal Demography. Essentially she found that the vast majority of Americans want abortions to be available for certain restricted situations. The interesting thing to me is that nothing much has changed in the poll results or their age-sex-race breakdowns since then. This suggests a very large majority ( 2/3 - 3/4 )has remained unwittingly in favor of overturning Roe v Wade despite decades of propaganda on the subject. It also shows that women become more opposed to abortion the more experience they have with childbearing!!

Congress was a lot more liberal back in 1971 than it is now.

Since I asked what the "movement conservatives" thought of how Raich came out in view of federalist principles, I'd like to pose the reverse question to anyone that defends the privacy basis for abortion. How is it that the majority could find for Roe and against Raich, or was it just that the latter question was improperly raised? Could the privacy argument nullify the entire CSA? What happens in principle when the commerce clause and the privacy right come in conflict? Is there any guiding principle here whatsoever?

Unhyphenatedconservative:

In your jurisprudence, may congress pass a mandate upon the state, and then tie funding of that mandate to state legislation over a subject which congress does not have direct authority to legislate?

(The national drinking age of 21 was set state-by-state through congressional withholding of highway funds from states which had set a lower age-limit.)

Assuming Roe were overturned, could it thus be constitutional for congress to require all states to make abortion illegal or forego federal medicare dollars?

It seems clear that in dealing with abortion, as with other issues, conservatives need to educate the public about the distinction between state and federal spheres of power.

Keeping things topical but relevant, Judge Alito indicated in his hearings that he has no problem with the Congress using federal funds to compel state legislation. (The drinking age / highway funds example was used.)

Judge Alito's claim that he has "an open mind" on whether Roe v. Wade should be overruled, when considered in light of his past advocacy of that decision being overruled, admits of two possibilities: (1) that Judge Alito is being, at best, disingenuous to the extreme, or (2) that Judge Alito is a more egregious flip-flopper than John Kerry ever dreamed of being. I thought that Rethuglicans claimed that flip-flopping is a bad thing.

My strong suspicion is that the judge's "open mind" is a shibboleth. Indeed, speculation that Harreit Meiers in fact had an open mind on this question that helped to abort her nomination.

The more plausible explanation is that Judge Alito lacked the candor to say, "I have made a deal with the dry-drunk-in-chief. He nominates me for life tenure on the highest court in the land, and I work like the dickens to overrule Roe v. Wade, provided that, when the issue eventually comes before the Supreme Court, Jenna and Barbara have by then gotten sober."

John Herbison,

What makes you think the President is still dry?

About the states' rights thing, there was a time when a woman just about had to go to Puerto Rico for an abortion. I know of no American colony, then state, that criminalized abortion (which has been around for a very long time) at the time of ratification of the Constitution. I'm most comfortable with recognizing a natural right under the 9th Amendment, incorporated against state government if you will by the 14th. If the Supremes want to call it part of a right to privacy, fine, if the result is to keep busybody government out of the decision of a free American. I'm a lot more worried about the epidemic of bastardy that the say no, feel guilty crowd has inspired in recent years.

This has probably already been said, but the two numbers are similar because the public mistakenly believes that overturning Roe equals making abortion illegal. It makes sense to the layman, if liberals created a right to abortion, conservatives would create a right of fetuses not to be aborted.

This confusion is amplified by the very poor reporting that Burgess notes in the NYT and elsewhere. Whether it is ignorance or intentional distortion, it's an excellent example of a failure of journalism.

Anyone who thinks that if pollsters would just ask the question right -- often suggesting a biased push-poll question of their own -- the public would turn out to oppose abortion "rights" is believing their own propaganda.

That stuff can be harmful or fatal if swallowed. Contact a physician immediately. Do not induce vomiting. Note: I am pro-life and anti_Roe. But I prefer not to delude myself about political facts.

A balanced poll question should mention the matter of letting states decide abortion's legality. But it also must include the core issue of a constitutional abortion "right," which is at the core of Roe. (See my own suggested version of the question in my post above.)

I have no doubt that even if the more nuanced question were asked, a substantial majority would support such a "right." That result would vary hugely across different states. Other questions already reveal that public public is confused, conflicted and self-contradictory in its attitude toward details of abortion. But I am sure that nationwide, a majority prefers to believe that such a "right" exists.