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Since the polls clearly show that the majority of the American people disagree with the Supreme Courts decision to overturn Roe vs. Wade, why does the US government not introduce an amendment to the constitution to allow abortion?

Rick Smith
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Joey Joystick
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    Introducing something is not equivalent to get it through though. If the American people really disagree with it, they should exert their influence more. For example take it to the streets or show their opinion in upcoming elections. I think introducing such an amendment would make a statement though and maybe would also force a vote on it showing how really is in favor and who is not. That could be valuable information for the electorate. – NoDataDumpNoContribution Jun 24 '22 at 19:21
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    Like a lot of issue polling, the results are complete nonsense and do not represent reality. The average person has absolutely no clue what RvW actual says -- which is exactly why the same polls showing majority support for it also show majority support for restrictions that would be illegal under roe. – eps Jun 24 '22 at 23:47
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    When you actually dig down you will find the average person in the US thinks that abortion should be legal till about 12 to 15 weeks and after that only if life of mother is threatened (in line with much of Europe). – eps Jun 24 '22 at 23:54
  • @eps "should be legal till about 12 to 15 weeks" But that's not what is hapening now. So introducing a bill to this accord would totally make sense. Who would have thought that 50 years ago humankind was more free than now (in a way). It feels like a regression and trying to change it legally seems quite reasonable. – NoDataDumpNoContribution Jun 25 '22 at 06:55
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    You would not need a constitutional amendment. An act of Congress would be sufficient, as suggested in the Dobbs decision. Congress has had 50 years to clarify or enact laws in accord with Roe v. Wade and they haven't done it. It's not likely they will do it now. A law establishing federal clinics for abortion, funding them and also providing for people who can't afford it would presumably be welcome to the "majority of the American people." – Wastrel Jun 25 '22 at 13:52
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    @Wastrel a constitutional amendment would seem necessary if you wanted any realistic chance of it remaining and being consistent across the US. – Jontia Jun 25 '22 at 14:41
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    The government in this question might be a less applicable for the US than for other democracies. In American usage the government is an amalgam of three branches, with the executive branch including 15 departments and dozens of regulatory agencies. I'm tempted to edit the question to refer to Congress. – CynicallyNaive Jun 25 '22 at 15:11
  • This is in contrast to the Government in parliamentary systems, where the Prime Minister is presumed to command at least a working plurality if not a majority. The legislature and executive are effectively playing for the same team and can coordinate on an agenda. Thus, the meaning is clear if you say "The UK (or Canadian or German) Government proposed ___," but it's unclear if "The US government" means Congress or the White House. – CynicallyNaive Jun 25 '22 at 15:16
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    The polls don't show that "clearly" at all. What they clearly show is a lot of confusion and precious little actual clarity. A massive percentage of the people who said they didn't want to get rid of Roe v. Wade also said they supported restrictions on abortion that happen to be impermissible under Roe and Casey. This implies that a whole lot of the people answering the polls did not know what they were talking about. – Mason Wheeler Jun 26 '22 at 01:34
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    @MasonWheeler I upvoted your comment, but it's a bit more complex. You can be against overturning Roe v. Wade on utilitarian grounds, while still supporting abortion restriction of 12-24 weeks. Essentially you might feel it's more important to protect the right of abortion up till 12 weeks than it is to restrict abortion after that time period, even though you want to restrict it. Of course the reality is 95% of people have no clue what Roe v. Wade actually held and why (even if like me you support it for utilitarian reasons) it was a very bad decision. – DRF Jun 26 '22 at 08:41
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    @MasonWheeler It's the same reason why I think Obergefell v. Hodges is an extremely bad decision, though I support the result of allowing same sex marriage. Unfortunately it's easier for 5 out of 9 people to end up agreeing on something than 300+ out of 500+ split over two chambers. Sadly the US congress has mostly given up on trying to do reasonable stuff. – DRF Jun 26 '22 at 08:46
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    Abortion is allowed at a federal level. It’s now up to the individual states. Declaring RvW unconstitutional did not ban abortion, it removed the requirement it be legal. – Tim Jun 27 '22 at 18:46
  • For a similar case, search the internet for "U.S. Equal Rights Amendment". The ERA got pretty close to becoming an amendment. – Thomas Matthews Jun 27 '22 at 20:04
  • @eps "When you actually dig down you will find the average person in the US thinks that abortion should be legal till about 12 to 15 weeks and after that only if life of mother is threatened (in line with much of Europe)." You say that, but I've lost count of the number of times that I've received the Internet equivalent of a bug-eyed stare and a refusal to elaborate for suggesting that perhaps ~24-26 weeks is more than enough time to realize that one is pregnant and come to a decision. – Karl Knechtel Jun 28 '22 at 01:38
  • @DRF "You can be against overturning Roe v. Wade on utilitarian grounds, while still supporting abortion restriction of 12-24 weeks." Okay, but we're agreed that this is irrational, right? How is it "utilitarian" to keep around a bad piece of legislation, when there is the potential to have a better piece of legislation? It seems clear enough that the existence of RvW allowed a lot of Dems to rest on their laurels, despite the questionable legal theory. – Karl Knechtel Jun 28 '22 at 01:40
  • @KarlKnechtel I don't think it's irrational. The outcome of the "bad piece of legislation" was that abortion was accessible. Since the numbers of mid-late term abortions is pretty low anyhow, the "cost" is fairly low in that respect. It's bigger in terms of noone doing anything and just letting SCOTUS legislate pretty much, but even so it's a balancing question if you think it's more important for poor woman to have access to abortion or if it's more important to have proper legislation. People can go either way on that. – DRF Jun 28 '22 at 05:52

4 Answers4

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Because it likely wouldn't get passed.

In order for a Constitutional amendment to be passed, it currently needs 38 state legislatures to support it. For practical purposes, it also needs supermajorities in both houses of Congress. There are 22 states that are going to ban (or already have banned) abortion. That only leaves 28 states that could possibly be willing to vote for such an amendment, which is not enough to pass it, and some of those are likely to join the list of those banning it over the next few months.

Given that neither party has a 2/3 supermajority in either house, there isn't even the political power available to get such an amendment proposed. And since no one has a supermajority in the Senate, neither side can even get an ordinary law on this topic passed, let alone an amendment.

Bobson
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    @Trilarion - I'd say that with more than a quarter of the states actively considering abortion illegal, then it is impossible for three quarters to vote in favor of permanently legalizing it. If enraged Democrats take over the government in those states, they'd first repeal their state law. But you're right that I shouldn't speak in absolutes. – Bobson Jun 24 '22 at 20:14
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    I'm extremely proud of my https://politics.stackexchange.com/questions/2988/ which shows you can pass a Constitutional amendment with only about 15% of the population. Conversely, if people with different opinions were spread out uniformly across the states, you'd have Congress full of one party and any amendment the majority supports would be passed. The only reason the less popular party has any power is because of regionalism. – Barry Carter Jun 26 '22 at 14:51
  • @barrycarter - That counterargument assumes the political base of said parties are unchangeable, so its not possible for either to broaden their base (or shrink their base) via policy positions, which is simply not true. It also goes against the actual American experience with one-party Congresses, where the ruling party always ends up fracturing into 2 factions. – T.E.D. Jun 27 '22 at 18:45
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    Although to be clear, a Constitutional amendment does not require a supermajority by any one party. It just has to be something that's actually a good enough idea that enough people can agree on it, heedless of party lines. It does, occasionally, happen. – JamieB Jun 27 '22 at 19:52
  • @JamieB was any amendment passed with both support and opposition from both parties? – phoog Jun 28 '22 at 11:46
  • @phoog - I suspect we'd find it used to be common, but for sure, that 26th amendment, ratified in 1971, was close to unanimous by both parties. Democrats 236-7, Republicans 165-12. – JamieB Jun 28 '22 at 13:26
  • @T.E.D.You are correct. I assume these 15% are extreme zealots who will do anything to pass an amendment, ignoring any other political issues. Additionally, I assume they elect only people from a party they form specifically to approve this amendment. My point is that 15% is small enough that you might be able to do it. My guess: an amendment to elect Trump President for life could pass, if all Trump supporters understood my argument. – Barry Carter Jun 28 '22 at 13:48
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Because the hurdle for amendments is, by design, too high to allow a change that does not have broad enough state-by-state support (no, a national-level majority does not apply here).

The Constitution | The White House

The founders also specified a process by which the Constitution may be amended, and since its ratification, the Constitution has been amended 27 times. In order to prevent arbitrary changes, the process for making amendments is quite onerous. An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification.

Both the proposal and the ratification phase do not seem to have the political support to pass this amendment. Remember that a number of states have congress people that explicitly want to limit this right, not enshrine it in constitutional law. And that a number of states, 13 in fact, making it more than the quarter needed to block ratification, have already passed anticipatory laws making abortion illegal as soon as they SCOTUS overthrows Roe vs Wade. As it just has.

Nor is it obvious that the people, in a sufficient number of states are strongly supportive of abortion to push a change to their representatives, at the present time.

Italian Philosophers 4 Monica
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    Just for my understanding: why does it need to be a constitutional level law to overrule state laws? Doesn't federal law in general trump state law in the US, so maybe a simple federal law saying "abortion is ok" would be sufficient in the US? Or is that not possible? – NoDataDumpNoContribution Jun 25 '22 at 06:57
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    @Trilarion the US constitution limits the scope of federal power. If congressed passed such a law, someone would sue, and a court would nullify the law as beyond it's power. – Caleth Jun 25 '22 at 09:45
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    @Caleth I see. So I would basically need to ask where exactly the limits to federal law making power are in the US. In other countries there is simply one kind of congress/parliament that makes laws for the whole nation, in the US that is different. – NoDataDumpNoContribution Jun 25 '22 at 10:37
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    @Caleth It's probably more precise to say it's an area where the Constitutional boundary between federal and state authority would be an open question to be litigated. However with the present composition of SCOTUS it's likely to end as you said. – CynicallyNaive Jun 25 '22 at 15:38
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    @Trilarion In theory it's laid out in the Constitution. In practice there are all sorts of marginal questions that have only really been resolved through case law. For example, the US Congress has jurisdiction over interstate, not intrastate, commerce. In practice markets are so tightly coupled now that Congress has taken on a lot more authority than the text might suggest. – CynicallyNaive Jun 25 '22 at 15:49
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    @Trilarion What's granted to the federal government trumps state law. That not granted to the federal government is controlled by the states insomuch as it doesn't violate the constitution and federal law. Thus Abortion, not controlled by the federal government as a protected right is a states right to control, allow or ban. – WernerCD Jun 26 '22 at 02:51
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    @Trilarion: there are many states with varying degrees of federalism, where some powers are explicitly reserved to lower level political entities. – Stephan Kolassa Jun 26 '22 at 07:33
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    To @CynicallyNaive ‘s point, I think the best that Congress would be able to get to stick are laws making it illegal to interfere with crossing state lines to get an abortion. I can’t see any good way they could force states to make it legal internally that wouldn’t get overturned. But IANAL. – Bobson Jun 26 '22 at 16:12
  • @Bobson They could try to do it under the Commerce Clause, arguing that it affects interstate commerce (which would be a more reasonable argument than with many of the other laws they've gotten away with using said clause.) However, of course, as soon as the balance of power in D.C. changed hands again, it could simply be repealed just as easily as it was passed. Of course, it would also require either 60 Senate votes (unlikely to happen) or ending the filibuster (also unlikely to happen) in order to pass in the first place. – reirab Jun 27 '22 at 16:22
  • Note that it's been 30 years since a constitutional amendment was ratified, and that was a weird fluke with a 200+ year ratification period. – dan04 Jun 27 '22 at 16:43
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There are a couple of reasons here. The other answers correctly address the issue that this would have no chance of getting 3/4 of states to ratify it, or of getting 2/3 of Congress to even propose it as an amendment. Neither an abortion ban nor an absolute Constitutional right to abortion would have anywhere near the support required for such an amendment in the present environment. Constitutional amendments are intentionally designed to require exceptionally broad support across the country in order to be approved.

The other issue, though, is that your premise about the polling is not really correct. Gallop has conducted annual polls on the abortion issue ever since the mid 1970s, shortly after the Roe decision. There has not been a single year since polling started where support for abortion being legal for any reason was more than 35% with the number spending much of that time in the low-to-mid 20s. The majority viewpoint has consistently been that abortion should be allowed under some circumstances, but not under others, which was not the case under the Roe and Casey decisions that were overturned.

Gallop Abortion Poll Results
Abortion support poll results since 1976, Source: Gallop

The sudden change in the 2022 data seems likely to be related to the fact that the polling in 2022 (by pure coincidence) occurred in the immediate aftermath of the leaking of the Dobbs decision, with polling occurring May 2-22 (roughly the same time frame of polling each year.) However, even so, the percentage of Americans supporting the legality of abortion for any reason only very slightly exceeded 1 out of 3.

It's actually reasonably likely that a Constitutional amendment to protect a right to abortion under circumstances such as significant health risks to the mother or cases of rape/incest could pass, as there is actually rather broad consensus there. In the same polls mentioned above, the percentage of people who believe abortion should be banned under all circumstances has rarely exceeded 20% and, when asked specifically about cases where the mother's health was endangered, were even significantly lower than that. However, such an amendment wouldn't extend as far as the left wants and its effect would be relatively small anyway, since most states with abortion restrictions already include exceptions for such cases. Such cases also represent a tiny minority of abortions in the U.S. According to a study conducted in 2004 by the pro-choice Guttmacher Institute, 4% of abortions were primarily due to health concerns of the mother and less than half a percent primarily due to the pregnancy being the result of rape or incest.

reirab
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  • Wish I could give more than +1 for this very important insightful answer! – deep64blue Jun 27 '22 at 19:43
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    I wouldn't be surprised to some day see an amendment around the lines of "the right to any elective medical procedure shall not be infringed". An amendment just for abortion seems oddly specific. – JamieB Jun 27 '22 at 19:56
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    Agree. Most European states have fairly strict limits about when abortion is not available anymore without health reasons: 14-16 weeks is pretty common. The US's left refusal to address the question of (very, very, infrequent) late abortions as a matter of principle was pretty short sighted. Note that Canada also has no term limits. Which isn't a big deal in practice because abortion is not a huge political issue here. But if it became one, insisting - all or nothing - on the right to late abortion is not very savvy, politically. – Italian Philosophers 4 Monica Jun 27 '22 at 21:28
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    @ItalianPhilosophers4Monica Honestly, I think Roe was the reason it became such a huge political issue here in the U.S., simply because it foreclosed resolving the issue in some reasonable middle ground via normal political processes. Interestingly, the Dobbs majority opinion expressly shared that opinion. And cited former Justice Ruth Bader Ginsberg as having expressed the same opinion. – reirab Jun 27 '22 at 21:33
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    @reirab agree. In Canada the Supreme Court granted gay marriage. Harper, not necessarily for very noble reasons, wanted to table it in Parliament, claiming that it was judicial overreach. Cue big hue and cry from the progressives. Result when it was voted on? Push come to shove, very, very, few Conservative parliamentarians voted against gay marriage. – Italian Philosophers 4 Monica Jun 27 '22 at 21:45
  • Could you elaborate about "especially Casey decisions"? I was under the impression that Casey introduced balancing tests that made it possible to introduce restrictions around the 22 or so week mark in many states, and that they generally got upheld. – Karl Knechtel Jun 28 '22 at 01:42
  • @ItalianPhilosophers4Monica it is definitely a political issue in Canada. It's just that the people willing to go out there and advocate for a pro-life position are a pretty small fraction of those holding it, due to immense social pressures. It's been kinda radioactive the entire time since Mulroney failed to introduce any restrictions. – Karl Knechtel Jun 28 '22 at 01:44
  • @KarlKnechtel Ah, yeah, thanks, I had them backwards in my head (in terms of the standards they required.) Removed the 'especially' part. – reirab Jun 28 '22 at 04:29
  • Did the polls ever ask if there is a majority for some sort of specific compromise like 16 weeks? Probably there would be. Or did they only ever ask for unspecific limitations? – NoDataDumpNoContribution Jun 28 '22 at 04:59
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    @Trilarion They asked lots of different questions about specifics. As far as timelines, legal in the first trimester and illegal from 2nd on have had consistent strong majority responses when not asking about any other details of the circumstances. When the people who said abortion should be legal in at least some circumstances were asked further whether it should be legal only in a few or legal in most, "legal only in a few" + "illegal in all" have have been in the 50-60% range for most of the time, though fell to 45% in the polling last month. – reirab Jun 28 '22 at 05:13
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    @Trilarion Specific reasons were polled in 2003 and 2018. When the reason was "woman does not want the child," majorities of 53% (2018) and 56% (2003) indicated that it should be illegal with 45% (2018) and 41% (2003) saying that it should be legal. On the other hand, when asked about cases where the mother's life was endangered or the pregnancy was due to rape or incest, very strong majorities indicated that it should be legal. – reirab Jun 28 '22 at 05:16
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I feel like this is missing a big part of the point of this whole bruhaha.

This is about abortion for sure, but it's also about a broader issue. The common refrain among rural Americans is something Washington elites don't share our values/represent us well. The entire Roe vs Wade thing for them was essentially an end-run around the democratic process since it was unlikely to pass as legislation (it can't even now, much less 50 years ago). Similar to the complaints liberals have when the conservatives, say, involve us in a decade-long unpopular and unjustified war. Nobody in a democracy likes having their viewpoint squashed by fiat (executive or judicial).

This is not to say that people don't have strong feelings on the issue at hand, but it isn't just about abortion: it's about representation. There are also echos of the states rights vs federalism debate which has never really died out even after federalism decisively won the American Civil War.

Rick Smith
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Jared Smith
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    While there have been issues where liberals have complained when conservatives have done stuff by executive fiat (e.g. Trump's immigration bans,) the Iraq war isn't really a good example. As much as the left complained about it later on, the Authorization for Use of Military Force in Iraq passed both the Senate and the House with very strong bipartisan majorities (296-133 House, 77-23 Senate.) Hillary Clinton voted for it, for example. Obama was the first President to start a conflict without an AUMF. – reirab Jun 29 '22 at 07:55
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    (+1 for the answer overall, though. It's a very valid point, just that particular example doesn't hold up well. John Kerry, who ran against Bush for President 2 years later, also voted in favor of it, for example, as did his running mate John Edwards and several other prominent liberal member of Congress, such as Dianne Feinstein, Harry Reid, Chuck Schumer, etc. It was definitely not a matter of executive or judicial fiat.) – reirab Jun 29 '22 at 08:07
  • @reirab a fair point. – Jared Smith Jun 29 '22 at 13:45