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Opinion | Roe’s Demise Won’t Save the Democrats

A funny thing happened on the way to the Dobbs case’s purported transformation of the midterms.

The historic Supreme Court decision overturning Roe v. Wade, which Democrats have been hoping will stun voters into supporting them in what otherwise would be a big GOP year, hasn’t had much discernible political effect.

The Republican edge on the generic congressional ballot has tightened up some, but there’s hardly been a revolution in the polling. In the RealClearPolitics polling average, Republicans led Democrats by about two points in mid-May and they lead by about two points now.

Dobbs is a truly historic case the ramifications of which will be felt — and can’t be truly known — for years. But as a quick-acting elixir for Democratic political woes, it’s a fizzle.

A number of things are going on. First, the May leak of the draft opinion stole some of the thunder from the decision itself a month or so later. The Alito opinion for the majority wasn’t quite old news when it was released, but everyone had had a chance to absorb the idea that it was indeed coming — limiting the shock value and making the decision a dominant story for days rather than weeks.

Then there’s the fact that most people aren’t passionate about abortion one way or another. The number of people saying it is a top-of-mind concern has increased, although not exponentially and the effect may fade with time.

According to the latest Harvard/Harris poll, inflation is the overwhelming issue for a strong majority of voters, with 62 percent saying it is their first or second greatest concern. Abortion rights is in a cluster of second-tier issues that 20-something percent of people say is a first or second concern, along with energy prices, crime and immigration.

A Monmouth poll found that only five percent of voters said abortion was their top concern — nine percent of Democrats and zero percent of Republicans. Meanwhile, a New York Times/Sienna poll found exactly the same thing.

It’s simply not possible to turn a national election on the basis of an issue that matters to such a relatively small proportion of people.

There’s no doubt that overturning Roe polls badly. There’s a perception in the popular mind that overturning the decision is tantamount to banning abortion everywhere, and it’s simply not true.

For all the talk of the radicalism of Dobbs, it doesn’t impose a uniform national rule. Rather, it allows the states to adopt different laws as determined by their electorates representing the country’s diverse political and moral geography.

This creates a lot of give in the system. California, Illinois and New York — representing about 72 million people—can have rules as permissive as Alabama, Kentucky and Missouri are restrictive.

Of course, there are going to be people in every state who disagree with the dominant view on this issue and provisions in a given state may spur national outrage. But California doesn’t have to worry about any entity imposing its rules on it— and neither does Texas.

Anyone who didn’t understand this when the decision was handed down will likely come to realize it with time. If someone in Burlington, Vermont is terrified that access to abortion in the state is about to disappear, he or she will figure out sooner rather than later that it’s not the case.

The misunderstanding about Roe creates confused and contradictory public sentiment. The aforementioned Harvard/Harris survey found a solid majority, 55 percent, opposed overturning Roe.

Yet a larger majority favored restrictions of the sort that Roe made impossible. According to the poll, 37 percent want to permit abortion only in cases of rape and incest, 12 percent to permit it only before six weeks and 23 percent after 15 weeks. That makes for a total of 72 percent of voters supporting a policy that couldn’t be written into law for the last 50 years under Roe.

Also, given the option, a plurality (44 percent) believes that abortion policy should be set at the state level, the arrangement that Roe didn’t allow and that Dobbs blesses.

Most of the public isn’t on board with the more sweeping critiques that have been made of the Supreme Court in the wake of the decision. Again, according to the Harvard/Harris, 63 percent believe that the Supreme Court is legitimate and 59 percent say it’s wrong for Democrats to deny its legitimacy.

The effect on the stated intentions of voters in the midterms was a flat draw— 36 percent said that Dobbs made them more likely to vote for Democrats, 36 percent more likely to vote for Republicans.

The political danger in the new debate over abortion is obviously over-reaching. In numerous red states, the GOP will have trouble explaining bans with no exceptions for rape and incest. But the collective Democratic position on abortion is a maximalist policy that doesn’t acknowledge any moral complexity to the issue and is completely heedless of public opinion.

It’d be one thing if Democrats embraced the basic Western European approach of permitting abortion before roughly the first 12 weeks. This would mean most abortions would still be legal, while the party could occupy the political middle ground and try to isolate pro-lifers favoring total bans. Instead, Democrats want a federal codification of Roe that would once again wipe away any state discretion, and indeed go even further.

As my National Review colleague John McCormick notes, the Democratic bill creates a right to abortion before “fetal viability,” or the threshold when the fetus is likely to survive outside the womb. It also forbids states from prohibiting post-viability abortions if a “health care provider” believes that continuing the pregnancy would risk the mother’s “health,” a term that includes physical and mental health and is supposed to be interpreted “liberally.”

This would effectively ensure a right to abortion through nine months, a position that has the support of 10 percent of the public, according to the Harvard/Harris poll. Moreover, the bill would cut down a swath of relatively minor, popular restrictions on abortion, including parental-consent laws, 24-hour waiting periods and requirements that pregnant people seeking abortions are told of alternatives.

If this legislation were ever to become the true focus of the post-Roe debate, there’s no way that Democrats would win it.

In sum, Dobbs isn’t a magic bullet for Democrats. Instead, it’s an invitation to open debate and deliberation over abortion policy that has opportunities for the party, but also pitfalls that it seems completely oblivious to or determined to ignore. And that’s one reason why it’s gotten in its current political fix to begin with.