Fast-tracked ruling on abortion won’t wait for ‘hearts and minds’ to change

Reviewed by Emily Henderson, B.Sc.Jan 21 2022

When he was running for president in 1999, George W. Bush, then governor of Texas, famously fended off the strong anti-abortion wing of his party by suggesting the country ought not consider banning abortion until public opinion shifted further in that direction. "Laws are changed as minds are persuaded," he said.

Bush was no moderate on the abortion issue. As president he signed several pieces of anti-abortion legislation, including the first federal ban on a specific abortion procedure, and used his authority to severely limit federally funded research on embryonic stem cells.

But he was clear in urging anti-abortion allies to concentrate on persuading more Americans to take their side before pushing for broader restrictions. "I know as you return to your communities you will redouble your efforts to change hearts and minds, one person at a time," he told anti-abortion demonstrators at the annual March for Life rally in 2004. "This is the way we will build a lasting culture of life, a compassionate society in which every child is born into a loving family and protected by law." For many years after that, anti-abortion forces concentrated on more incremental steps, such as putting burdensome health and safety requirements on abortion clinics and requiring waiting periods before abortions.

It seems that strategy is about to be tested. Although public opinion on abortion has budged little in the ensuing two decades and the nation is still bitterly divided, the Supreme Court appears poised to overturn or at least significantly weaken its landmark abortion ruling, Roe v. Wade, decided 49 years ago this week.

Sometime in the coming weeks or months, justices will decide in a case from Mississippi whether bans on abortion before fetal viability can be constitutional. During those arguments in December, most of the justices in the court's new conservative majority seemed to question the constitutional foundation of the nearly 50-year-old precedent that guarantees the right to abortion nationwide. If a majority answers yes to allowing Mississippi's ban at 15 weeks of pregnancy, "that undoes Roe," said Marjorie Dannenfelser, who, as president of the Susan B. Anthony List, has been working toward that goal since the organization's 1992 founding.

Abortion-rights supporters also expect Roe to be overturned. In Texas, all but abortions performed in a pregnancy's earliest stages have been unavailable since September because of a legal standoff over a state law that bans abortions after six weeks but leaves enforcement to the general public, by authorizing civil suits against anyone who performs an abortion or "aids and abets" one.

"Roe has no meaning," Dr. Bhavik Kumar, a San Antonio abortion physician, told reporters on a conference call Jan. 18. "We're living in a place where abortion is essentially banned." Kumar said the Texas law, which the Supreme Court refused to block last month, means abortion is illegal "as soon as 10 days after a missed period for some women."

Dannenfelser said that even if the justices roll back Roe, groups like hers still want Americans to come to a consensus on the abortion issue, but it may not be a national agreement. "But that's what consensus is, it's the consensus of people living in [each] state," she said. "So it will be different in Alabama than in North Carolina, which will be different from the state of Washington, from Texas." And what if lawmakers turn out to be more anti-abortion than the people who elected them? "They get unelected," she said, but she also envisions the question working the other way. "And if they're not strong enough in their convictions on life, they'll be unelected."

Abortion-rights supporters say the public discussion has too long been marked by a lack of transparency. "We've had a decade-long campaign of misinformation and disinformation," said Kumar. "When people understand reality, when they understand science," he said, "it has a profound difference on their opinion."

That's where the Turnaway Study comes in. It's a 10-year look at nearly 1,000 women at 30 abortion clinics who got abortions or were "turned away" because they were too far along in their pregnancies. "We were interested in answering the question 'Does abortion hurt women?'" said Diana Greene Foster, the study's lead researcher and author of the book "The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having — Or Being Denied — An Abortion." Abortion foes for years have claimed that abortion harms women's mental health and causes physical problems as well.

Data from the Turnaway Study has resulted in the publication of more than 50 peer-reviewed studies, and the answer to nearly all the questions asked, said Foster, is that the women who got abortions fared better in respect to economics and health, including their mental health, compared with those who did not have abortions.

"We see large immediate differences in the economic well-being where women who were denied abortions are more likely to be poor, less likely to be employed, more likely to say they don't have enough money for basic living needs," she said.

Yet that's not what much of the public hears. "It's so interesting that this idea that abortion hurts women has gone so far with no data, and that the idea that being denied an abortion hurts women has not yet carried in the same way," Foster said.

And in the end, public opinion really shouldn't even matter that much, said Dr. Jamila Perritt, an OB-GYN and abortion provider in Washington, D.C., and president and CEO of the abortion-rights advocacy group Physicians for Reproductive Health. "When you need access" to abortion care, she said, "the opinion of other people, who know nothing about your life, means little."

But it may help determine whether — and where — legal abortion remains available.

HealthBent, a regular feature of Kaiser Health News, offers insight and analysis of policies and politics from KHN's chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.