Supreme Court Can Easily Survive Gutting Roe, Despite Sotomayor's Warning, Polls Show

Supreme Court Associate Justice Sonia Sotomayor issued a stark warning on Wednesday about what could happen if the justices overturned the abortion law precedent established almost 50 years ago in Roe v. Wade.

During oral arguments in Dobbs v. Jackson Women's Health Organization, the Obama appointee asked whether the court could "survive the stench" of overturning the 1973 case.

However, polling suggests many Americans don't see abortion as one of the major problems facing the country—and a relatively small percentage believe abortion should generally be legal during the second trimester.

On Wednesday, Sotomayor said of the possible overturning of Roe: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don't see how it is possible."

Sotomayor, who has a strong record of opposing abortion restrictions that have come before the Supreme Court, was questioning Mississippi Solicitor General Scott Stewart.

However, it is not clear that public perception of the court will suffer significantly if the nine justices revisit Roe.

Polling consistently shows that Americans want the Supreme Court to uphold Roe, with Gallup reporting in June that 58 percent of people do not want it overturned, compared with 32 percent who do. However, polling has also found that Americans favor various restrictions on abortion.

Support for Restrictions

An NPR/PBS Newshour/Marist poll conducted in 2019 found that 77 percent of Americans didn't want the court to overturn Roe. However, 61 percent of respondents also expressed support for limitations: 23 percent backed abortion only in the first trimester; 29 percent said it should be permitted just in cases of rape, incest or threat to the life of the woman; and 9 percent said it should solely take place to save the life of the woman.

These figures suggest that most Americans think the stage of pregnancy is a key issue in abortion decisions.

It is also the case that overturning Roe would not make abortion illegal at a federal level and it would be up to individual states to make that determination. Eighteen states already have laws that would immediately ban abortion, while 13 states and D.C. have laws protecting abortion rights.

Other polls have found that Americans broadly favor restrictions on abortions. A 2020 Kaiser Family Foundation poll found that 69 percent of respondents supported laws that would require doctors who perform abortions to have admitting privileges at local hospitals—a requirement that the Supreme Court struck down as an undue burden in 2016.

Overturning or affirming the decision made in Roe is not the only option available to the court. Mississippi has asked the justices to judge the state's near total 15-week abortion ban by the "undue burden" standard.

Roe found that abortion in the first trimester—before fetal viability—was a matter for the pregnant woman and her doctor. In the second trimester, Roe said states could impose reasonable restrictions relating to the woman's health and, in the third trimester, states could ban abortions except those that were necessary to preserve a woman's life.

The Trimester Question

When Roe's core holding was affirmed in 1992's Planned Parenthood v. Casey, the court applied a new standard to abortion restrictions—whether they impose an "undue burden" on women seeking the procedure. The court also moved the viability date to around 23 weeks.

The court could decide to apply the undue burden standard to Mississippi's law and find that it does not impose such a burden, opening the door to more restrictions earlier in pregnancy. Critics would claim that this guts the 1973 ruling, though it is a possible compromise some of the conservative justices may favor.

Polling from Gallup in 2018 found that Americans may be willing to accept more restrictions before the 23-week mark. Gallup reported that 60 percent of Americans believed abortion should generally be legal in the first trimester, but just 28 percent said the same for the second trimester and 13 percent for the third trimester.

Those findings were consistent with Gallup's polling in 2012 and in 1996, when it first asked the question. That suggests restrictions imposed after the 12th week of pregnancy could be acceptable to a large number of Americans.

Americans Think There Are Bigger Issues

Abortion is not widely considered a major issue. Gallup polling from October this year found that just 1 percent of respondents said it was the most important issue facing the country—far behind the top issue of the economy at 24 percent and the government/poor leadership at 21 percent.

A poll by The Economist/YouGov in October painted a similar picture, with just 4 percent of respondents rating abortion as the single most important issue to them. The top issue was health care at 17 percent.

As a result, the effect that overturning Roe or accepting further restrictions might have on the reputation of the Supreme Court is not predictable.

Sonia Sotomayor Poses for a Photo
Associate Justice Sonia Sotomayor at the Supreme Court in Washington, D.C. on April 23, 2021. Sotomayor has opposed abortion restrictions. Erin Schaff-Pool/Getty Images