Is A Compromise on Abortion Possible?

With the recent US Supreme Court ruling to reverse Roe v. Wade, the question arises—what do the voters want? Several recent Marquette Law School polls have included questions that get at the answer.

The graph below shows Wisconsin voters’ response when asked whether abortion should be legal. The first five of the groups of columns show the responses based on the voters’ political affiliation—Republican, independent who leans Republican, Independent, Independent who leans Democratic, and Democrats. The last group of columns show the total response.

The voters were asked to pick one of four answers: that abortion should be 1) legal in all cases (shown in green), 2) legal in most cases (light green), 3) illegal in most cases (pink), or 4) illegal in all cases (red). These columns demonstrate how partisan the abortion issue has become: 94% of Democrats said that it should be legal in all or most cases, compared to 66% of Republicans who said it should be mostly illegal.

Still, there remain a quarter of Republicans who support allowing abortions in most or all cases, as well as half of Republican leaners. This is one more reason for Republicans to make the next election about something else—anything else—rather than abortion.

One problem with interpreting the results comes with the two middle groups: what are the cases they feel should be exceptions? To what extent did members of these groups have the same cases in mind?

In the most recent (August 2022) survey, the Marquette Poll asked a question I had not seen before: Should abortion be available in the case of rape or incest? As the next graph shows, the response was overwhelming: only 8%–but 17% of Republicans–said that abortion should not be available in the case of rape or incest.

Wisconsin’s 19th century abortion law says nothing about a possible rape or incest exception. (And has some have noted, there is a certain consistency to those opposing the exception, if one believes that abortion is murder. After all, the fetus had no role in the rape or incest.)

The question then arises as to when in the development of a fetus should an abortion ban take effect? In another poll, Marquette asked voters whether they would favor or oppose bans taking effect at 6 weeks, 15 weeks, and 6 months, as well as a total ban on abortions or no restrictions. This poll, however, used a national sample of voters.

The following graph shows the result. The 6-month abortion ban has the highest ratio of support to opposition. Six months is about 26 weeks.  Currently, viability is estimated to be around 22-24 weeks.

Note that these results are consistent with those in the first graph. If one adds the percent of people in groups 3 and 4, those who support bans in most and all cases, the total is 31%, very similar to the 30.3% in the graph below. Similarly, the total of those supporting abortion availability with few or no restrictions on the first graph is 69%, very close to the number opposing a total ban below.

It is impossible to design a legal framework for abortion that would satisfy everyone. Clearly there is a small but intense group that would object to any law that allowed abortion. But democracy requires compromise. In the long run, allowing a minority to impose their religious values on the majority is unlikely to be sustainable.

What would a law look like that reflected the views of the majority of Wisconsinites? I suggest there would be at least two elements. First, the polls suggest that banning abortions only after viability is widely accepted as a commonsensical dividing line. Up until then it should be a pregnant person’s decision whether to have an abortion.

Second, there is an overwhelming consensus that abortions should be allowed in cases of rape and incest. A law with those two provisions would have the support of two-thirds of voters.