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Northeastern professor says, ‘In the end, Roe and Casey will be reaffirmed'

Photo by Patricia Huchot-Boissier/Sipa via AP Images

Northeastern experts say the anti-abortion cause, despite its institutional foothold on the Supreme Court, will diminish in strength given time—and that reproductive rights will, in a long drawn-out political and legal struggle, win out. 

The high court recently ended a decadeslong constitutional protection for abortion in overturning Roe v. Wade. Many experts, including Jeremy R. Paul, a professor of law and former dean of Northeastern’s School of Law, have long-contended that the three recent conservative appointees to the court were chosen specifically to overrule Roe.

But the highly partisan court, which Paul says serves the interests of what he describes as a minority viewpoint, is overshadowing majority public opinion on the issue of abortion.

“If the country is allowed to express itself, in the end, Roe and [Planned Parenthood v. Casey] will be reaffirmed, and because of that there is a tremendous anti-constitutional movement to shut down, through things like gerrymandering, popular will,” Paul says. “As a result, ordinary political processes have been under assault.”

Poll after poll over the years has shown that a large swath of the American public support abortion and reproductive rights (though very few Americans take an absolutist view on either side of the debate, research shows). Following the leaked Supreme Court draft opinion on abortion protections earlier this year, Gallup saw near-record support for the pro-choice cause in a recent poll. 

Northeastern Distinguished Professor of Law Martha Davis; and law professor Jeremy Paul. Northeastern University Photos

“Pro-choice sentiment is now the highest Gallup has measured since 1995 when it was 56%— the only other time it has been at the current level or higher—while the 39% identifying as ‘pro-life’ is the lowest since 1996,” Gallup authors wrote on June 2. 

Polling in the wake of Friday’s decision—which, by a vote of 6-3, effectively sent the issue of abortion back to the states to regulate—has reaffirmed that sentiment, with a majority of Americans (56%, according to the latest NPR/PBS NewsHour/Marist National poll) opposing the decision. Roughly 40% of those polled said they support the ruling.

Paul says, despite the entrenched conservative supermajority on the Supreme Court, there are reasons to be cautiously optimistic about the future of abortion rights. Conservative principles have less staying power with younger generations, which might explain the urgency with which the anti-abortion cause has been operating in recent years, he says. And it’s unlikely, were the Republicans to retake Congress and pass a national abortion ban law, as many observers now worry, that Chief Justice John Roberts—who made his reservations about overturning Roe known—and Justice Brett Kavanaugh would support it, Paul says. 

Yet anti-abortion views, which for all intents and purposes represent minority opinion in the U.S., continue to penetrate the institutions of government. One reason for that, Paul says, is gerrymandering, or the practice redrawing districts to ensure that one party wins those districts.

Indeed, gerrymandered states, such as Ohio, Alabama and Georgia, where polling has shown majority support for keeping abortion legal, are nevertheless governed by Republican-majority legislatures. Those states have recently passed harsh restrictions on abortion—the consequences of which are beginning to play out now that the constitutional protections have been discarded.

The practice, Paul says, has distorted the reality of the actual, on-the-ground support for keeping abortion legal. 

“More states will ultimately reach the pro-choice position were it not for the vicious gerrymandering in some states,” he says. “This is in no way the end of the story.”

But the reading of public opinion on the issue of abortion should be more nuanced, says political science professor William Mayer. He says public opinion diverges when you look at the precise circumstances women face during the course of pregnancy, with most people favoring some form of restrictions in the latter stages of pregnancy.

For example, a Wall Street Journal poll found that a slightly larger share of Americans support a 15-week abortion ban than oppose it. A 15-week ban was what the Supreme Court reviewed in Dobbs v. Jackson Women’s Health Organization, the case in which the court overturned Roe.

Of course, measuring public opinion on abortion all depends on what you ask Americans—and how you ask it.

“There is a very large and active pro-life movement in this country,” Mayer says. “Is it a majority? No; but the pro-choice side isn’t a majority either.” 

The recent decision could have a significant impact on the midterm elections, provided younger voters take to the polls, says Martha F. Davis, university distinguished professor of law at Northeastern, who teaches constitutional law and human-rights advocacy.

“This decision reflects a view of abortion that is out of step with the majority opinion of Americans,” Davis says. “And American women are not going to accept the idea that they are second-class citizens.”

The consequences of the ruling resound beyond borders as well, Davis says. 

“Of course, this opinion is going to make the U.S. an outlier among other developed countries,” Davis says. “It’ll undermine our ability to speak with any kind of authority about women’s rights anywhere.” 

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