Comparing the candidates’ abortion policies
After the Supreme Court overturned Roe v. Wade in 2022, abortion was expected to be a key issue in the 2024 Presidential election. Other issues now seem more important to voters, as an August 2024 Economist/You Gov poll found that only 75 percent of respondents considered abortion to be important, which trailed most other issues asked about in the poll, including inflation, jobs and the economy, health care, taxes and government spending, national security, crime, foreign policy, education, civil rights, civil liberties, immigration, criminal justice reform, and guns. However, when asked which issue was most important, seven percent of respondents selected abortion, which trailed only inflation, jobs and the economy, immigration, and health care. This post summarizes the current state of U.S. abortion policy, the candidates’ positions on abortion policy, and public support for those positions.
U.S. abortion policy
In its 1973 decision in Roe v. Wade, the Supreme Court created a three-part framework for determining the constitutionality of state abortion restrictions, based on the trimester of pregnancy. During the first trimester, a state could impose only minimal medical safeguards. Starting with the second trimester, a state could impose reasonable medical regulations that were narrowly tailored to protect the woman’s health. Starting with the third trimester, a state could prohibit all abortions, except when necessary to protect the woman’s life or health.
In 1992, the Supreme Court modified the Roe framework in its Planned Parenthood v. Casey decision. That decision allowed states to prohibit abortions after fetal viability. The second trimester ends after about 27 weeks, but fetal viability was thought to occur at about 24 weeks at the time. And many states adopted shorter viability tests: In 2019, three states had banned most abortions after 6 weeks, three states had 15-week bans, and 14 states had 22-week bans. Almost all of the remaining states banned most abortions after either 24 or 25 weeks or after fetal viability. Only six states allowed abortions at any time.
In 2022, the Supreme Court overruled both Roe and Casey in its decision in Dobbs v. Jackson Women’s Health Organization. That decision returned the power to regulate abortion to Congress and state governments, which has left states with the discretion to place almost any restrictions on abortion at any point in a pregnancy. Under Dobbs, many states have adopted much more restrictive abortion policies than were permitted under Casey. Fourteen states have banned almost all abortions, three states have banned almost all abortions after six weeks, three states have bans ranging from 12 to 15 weeks, and five states have bans ranging from 18 to 22 weeks. Fifteen states have maintained bans at 24 weeks or fetal viability. Surprisingly, there are more states with no abortion restrictions now (nine) than there were prior to Dobbs (six), as a few states have passed laws guaranteeing abortion rights since 2022.
A related issue that has assumed increasing importance since Dobbs is the legality of medication abortions. The Supreme Court recently rejected a lawsuit over the Food and Drug Administration’s approval of mifepristone, the most common abortion medication. Therefore, as with abortion policy generally, medication abortion policy is currently left to the states. The same fourteen states that have banned abortions generally have also banned medication abortions, fourteen other states require a physician to prescribe medication for abortions, and the remaining twenty-two states allow a clinician to prescribe the medication.
The candidates’ positions on abortion policy
Former President Trump has been hesitant to take a firm position on abortion policy. At times, he has seemed to support a federal ban on abortions after a certain time in the pregnancy, such as 16 weeks. More recently, however, he has seemed to support the status quo under the Dobbs decision, where abortion regulation is left to the states. He has sometimes criticized the six-week abortion bans in certain states as being too short, yet he indicated that he would vote against the ballot measure to repeal Florida’s six-week ban. He has also indicated his support for medication abortions. Therefore, it seems most likely that former President Trump would not support any new federal abortion laws.
Vice President Harris has said that she wants a federal law that restores the policy under Roe, but she has also said that she wants to go back to the policy prior to Dobbs. Therefore, it seems that she really supports a federal law that restores the policy under Casey, which prevented states from banning abortions prior to fetal viability, but not until the end of the second trimester as Roe had. However, it also seems likely that she would want any new federal law to define fetal viability at the medically accepted standard, which is currently 22 to 23 weeks, to prevent states from adopting much shorter viability tests as they had under Casey. She has also indicated her support for medication abortions. Therefore, it seems most likely that Vice President Harris would support a new federal abortion law that prevents states from banning abortions prior to 22 or 23 weeks. It’s important to note that both the feasibility of Congress passing such a law and the likelihood of such a law withstanding legal challenges are questionable, although Harris could pursue other options to make abortions easier to obtain for women in states with abortion bans.
Public opinion on abortion
American public opinion on abortion depends very much on the form of the question. For example, a May 2024 Pew survey found that 63 percent of Americans think that abortion should be legal in all or most cases, while only 36 percent think it should be illegal in all or most cases. However, a May 2024 Gallup survey found that, while 35 percent of Americans think that abortion should be legal under any circumstances, 50 percent think it should be legal only under certain circumstances, and 12 percent think it should be illegal in all circumstances.
In comparing the candidates’ positions, it is perhaps more relevant to consider public opinion on the Dobbs decision itself, since neither candidate is proposing a fully national abortion policy; the question is how much discretion states should have to restrict abortion, especially prior to viability. Former President Trump prefers the post-Dobbs landscape, while Vice President Harris would like to return to the pre-Dobbs world. To that point, a June 2023 Gallup poll found that 61 percent of Americans thought that the Dobbs decision was a bad thing, while only 38 percent thought that it was a good thing. Similarly, when asked directly whether they prefer Vice President Harris’s or former President Trump’s abortion policies, voters have consistently said that they prefer Harris’s policies by a 15 to 20 point margin.
Therefore, it seems that most Americans prefer Vice President Harris’s abortion policy. However, a 2023 Gallup poll found that, while 69% of Americans thought that abortions should generally be permitted during the first trimester, only 37 percent felt the same about abortions during the second trimester. So, most Americans may actually prefer a national policy allowing abortions only through the first trimester or at least a national policy preventing states from restricting abortions during only the first trimester. The following table shows these different positions.
Unsurprisingly, there is a significant partisan divide on abortion policy preferences. A 2023 poll asking about specific preferences found the following results:
As expected, a majority of Democrats favor permitting abortions through at least fetal viability, while a majority of Republicans support banning all abortions, except for rape, incest, or to save the life of the woman. Only 26% of Independents supported the Roe policy allowing abortions through at least the second trimester. A 2023 Gallup poll found a similar result, with only 36% of Independents responding that abortions should generally be permitted during the second trimester.
Therefore, it appears that Americans in general, and Independents in particular, prefer Vice President Harris’s abortion policy mainly because they do not approve of state laws banning abortions during the first trimester. A majority of Americans, and a majority of Independents, may actually prefer former President Trump’s policy for the second trimester, allowing states to ban abortions during that period even prior to fetal viability. But that second trimester issue seems less important to moderates than their support for permitting almost all abortions during the first trimester. Both former President Trump and Vice President Harris are already being attacked by the extremes of their parties for supporting abortion policies that are too moderate. Therefore, it is unlikely that either candidate would be able to move more to the middle on this issue, to the position that a majority of Americans and Independents seem to prefer.
