Government & Politics

How the Supreme Court’s Abortion Ruling Played in the Court of Public Opinion

Surveys find that reversing Roe v. Wade did not shift Americans’ beliefs — but did change views of the high court’s legitimacy.

December 04, 2023

| by Dave Gilson
Abortion rights activists and counter protesters face each other, both yelling into megaphones, protesting  outside the U.S. Supreme Court, in Washington DC

The 2022 decision’s largest impact was on already polarized attitudes toward the Supreme Court. | Elizabeth Frantz/Reuters

Every spring for the past four years, Neil Malhotra and a couple of colleagues have surveyed Americans about topics currently before the Supreme Court. The idea is to gauge public opinion on contentious subjects before it might be affected by upcoming rulings.

“You can get a sense of what people think about these issues before the court decides,” explains Malhotra, a professor of political economy at Stanford Graduate School of Business. “You’re not just picking up people agreeing with the court because they like the court.”

The results, published in the New York Times, have shown where the high court’s justices align and split with Democrats’ and Republicans’ opinions on gun control, religious freedom, affirmative action, and environmental regulation.

In April 2022, Malhotra and his collaborators at Harvard and the University of Texas asked a panel of 2,100 people about various issues before the court, including abortion. Not long after that, a draft of the court’s decision in Dobbs v. Jackson Women’s Health Organization was leaked, revealing that it was about to roll back the abortion rights recognized in Roe v. Wade in 1973.

The explosive revelation presented a unique research opportunity. Less than two weeks after the leak, Malhotra’s team joined up with researchers at Princeton and Dartmouth to re-survey the people who had just taken the April survey. These respondents were then surveyed again after the official Dobbs ruling was handed down in June. These surveys, combined with two more polls of randomly selected participants, provide a series of snapshots of how one of the most controversial legal decisions in recent history affected Americans’ opinions on abortion and the Supreme Court.

The study, published in Nature Human Behavior, finds that Dobbs barely affected Americans’ overall opinions on abortion. Both before and after the ruling, around 60% of respondents said they supported legal abortion. The 6-3 decision’s largest impact was on already polarized attitudes toward the Supreme Court. Democrats’ perceptions of the court’s legitimacy dropped significantly after the leak and again after the final ruling. Over the same time, more Republicans said they viewed the court positively.

Breaking With Precedent

These findings challenge established understandings of the court’s role in shaping public opinion as well as its ability to weather controversy. Political scientists have held that Americans are swayed by the court, even when it makes unpopular decisions, partly because they respect its legitimacy. “Our study upends both of these literatures because it shows that there was not this mass movement against abortion rights because of the court’s decision,” Malhotra says. “And the legitimacy of the court among Democrats fell quite a bit as a result of the ruling.”

There was not this mass movement against abortion rights because of the court’s decision. And the legitimacy of the court among Democrats fell quite a bit as a result of the ruling.
Neil Malhotra

“The traditional narrative has always been that when the court has a very high profile ruling, it persuades people to come to its side,” Malhotra says. This effect has been seen after Supreme Court decisions on issues such as school desegregation and gay rights. “There were a lot of studies done after Obergefell v. Hodges that found that after the Supreme Court granted the right to gay marriage, support for gay marriage increased quite a bit.” Previous research has focused on instances in which the court expanded civil rights. Yet the Dobbs decision rolled back an existing right, which, Malhotra notes, “was a unique circumstance.”

The 6-3 Dobbs decision did not reflect most Americans’ views on abortion. This was confirmed by Malhotra and his colleagues’ surveys, in which a majority of respondents said they wanted abortion to remain legal and were aware that the high court’s ruling did not reflect this view.

Previous research has found that even when the court’s rulings are out of step with mainstream opinion, Americans continue to perceive it as legitimate. After the Dobbs ruling, however, views of the court split along partisan lines. Support for the court among Democrats surveyed by Malhotra and his colleagues dropped to around 40%, while around 60% of Republicans viewed the court as legitimate.

Courting the Public

Some Democratic lawmakers responded to Dobbs by issuing proposals to change the court’s composition by adding members or enacting term limits. Malhotra’s team found increased support for these efforts among Democrats. “The court reform ideas have polarized as a result of this decision,” he says. “It’s made Democrats more supportive of expanding the court and Republicans less supportive of term limits.”

The study found one area where the court appears to have shifted opinions across party lines. The Dobbs case focused on the constitutionality of a Mississippi law that prohibited abortions after 15 weeks of gestation. Malhotra’s team found that after the ruling, the perceived age of fetal viability shifted among all respondents, regardless of party, to below 15 weeks. “People thought that the viability threshold was lower because of this 15-week discussion, even though they generally wanted Roe to be maintained,” Malhotra says.

While the Dobbs decision cemented the Supreme Court as a conservative institution in many Americans’ minds, Malhotra notes that overall, the court’s rulings in 2023 were more moderate than those of the past few years. Malhotra, who has documented the Supreme Court’s more conservative shift since the 2010s, thinks this shows the court responding to how it is publicly perceived, deliberately taking on cases where “it could see itself more in line with public opinion.”

So far, the Supreme Court does not have any cases related to reproductive rights on its current docket, though the FDA has asked it to review a case about access to the abortion drug mifepristone. Malhotra and his team plan to launch their next wave of surveys next April.

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