July 1, 2022

"Following the Supreme Court decision to overturn its 1973 Roe v. Wade ruling... 59% of voters think that Congress should pass a law legalizing the right to abortion."

Well, that's poorly written, by Emerson College Polling

What does it mean to "legalize a right"? The statute would legalize abortion. Or you could say the statute would create a right to abortion or make a statutory right out of what once was recognized as a constitutional right. But there's no need to "legalize a right." There's no law against an abortion right that needs removing. The states are free to make laws that give women the right to have an abortion. That may not always be the case. It might be that if Republicans of a certain sort win enough seats in Congress, they will pass a federal law proscribing laws that create a statutory right. At that point, if you wanted to get that law repealed, just to leave it to the states to make their own abortion laws, it might make sense to speak of "legalizing the right to abortion." But even then, it would be awkward.

I downloaded the full poll and I see that was the question: "Should Congress pass a law legalizing the right to abortion?" Did anyone respond, "What do you mean?" 

Not only is it not colloquial or ordinary legal jargon to speak of "legalizing a right," you can't tell what specific federal law they're talking about. What were respondents picturing: A law that overrides all laws against abortion, permitting abortion at all stages of pregnancy? A law that tracks the Supreme Court's line, outlawing any undue burden on abortions up until the point called "viability"? A law that gives any opportunity to have an abortion, including a law with a very short time frame, like 6 weeks?

Who's supposed to say yes to the question "Should Congress pass a law legalizing the right to abortion?" What if I think a federal law should guarantee access to abortion in the first 10 weeks, but after that, it's a matter of state law? Do I answer "yes" or "no"? I suspect that most people are not thinking in those terms and answered as if they'd been asked, Are you unhappy with the Supreme Court's decision? I suspect that most people, reading this blog post, would simply be puzzled — what am I talking about?! — or exasperated and annoyed. 

I'd like to see a poll that asked something like this:

 
What sort of law protecting access to abortion do you think Congress should pass?
 
pollcode.com free polls
ADDED: Poll results:

57 comments:

Jake said...

"The states are free to make laws that give women the right to have an abortion."

While I agree that the headline was poorly worded - aren't you just saying the same thing? How is it different - i.e. if you "pass a law" legalizing the right to abortion aren't you "mak[ing] laws that give women the right to have an abortion"?

gilbar said...

I'm not saying, that Emerson College Polling is a biased and fictional made up fake poll..
But rather than worry about biased and fictional made up fake polls..

Here's numbers from the latest Economist/YouGov poll, it included a number of questions on abortion and was conducted entirely after the Supreme Court’s recent Dobbs decision was announced.

On the subject of abortion, at what point in a pregnancy do you think abortions should be banned?

Abortion should never be banned 28%
Banned after six months (the second trimester) 7%
Banned after 15 weeks 12%
Banned after three months (the first trimester) 16%
Banned after six weeks (when a fetal heartbeat can be detected) 18%
Banned after conception (always banned) 20%

That (by my math) is 54% (16+18+20) say Abortion SHOULD BE BANNED after the 1st trimester (13 weeks?)
And that is 66% (12+16+18+20) say Abortion SHOULD BE BANNED after 15 weeks.
A Grand Total of 28% agree with the current Democrat position (Abortion is something to brag about)
(If my math is right).. A MAJORITY of DEMOCRATS DISAGREE with the current democrat position!
GO DEMOCRATS!!!! VACUUM UP THOSE KIDS!!!

gilbar said...

https://www.aim.org/on-target-blog/poll-buyers-beware-emerson-college-polling-has-some-issues/

Lucid-Ideas said...

Sure you could. It's called an amendment. There's a process.

It would fail. Massively. So please, skin that smokewagon...

Enigma said...

You are thinking too much like a law professor...in ordinary language "legalize a right" makes sense to "alot" of barely literate people. They are "literally" going jump over the moon until their rights are legalized.


More than a few critics say that the US Bill of Rights sets up absolutist logic and demands for 100% or 0% "rights" political solutions. The notion of the right of free speech and the right to own guns leads to many "over my dead body" or "cold dead fingers" reactions. And the right to healthcare, and to abortion, and the right for financial support of the disabled, the right of financial support for the elderly, the right to never be offended or insulted, etc. etc. So, in casual language "legalize a right" means make it 100% absolute and secure, and (often) to have someone else pay for it too.

Management by the mediocre is a trait of democracies...it either avoids the worst of humanity or allows the citizens slump into ineffective lumps.

Inquiry said...

It sounds like they are either confused about the nature of rights or they are trying to poison the well.

n.n said...

An absolute right to commit abortion? Elective abortion as a human rite? Will the right to terminate a human life for social, redistributive, clinical, and fair weather causes, be limited to females by Nature, or equitable and inclusive?

MadisonMan said...

Did anyone respond, "What do you mean?"
That sounds like a lawyer speaking.

Gusty Winds said...

For years of questions on late term abortion were cowardly avoided and answered by Democrats as "I support a woman's right choose"...which in plane English means "I support infanticide".

This is a good poll. Of course not valid, but on the larger scale as we watch this play out nationwide, we are going to see clearly that nobody supports "Guarantee abortion throughout pregnancy".

Well everyone expect people on college campuses.

You'd have to wash your hands harder than Pontius Pilate after pulling the lever on that one.

JAORE said...

And there's the rub. Not codifying legal abortions maintained a delightfully effective wedge issue/funding resource. AND avoided the kind of decisions/compromises included in the poll.

And that doesn't even touch on what counts as health of the mother.

pious agnostic said...

I suspect that most people are not thinking in those terms and answered as if they'd been asked, Are you unhappy with the Supreme Court's decision?

This is undoubtedly correct.

Shortening this to the first eight words is probably correct.

Hippogryph said...

Would it mean: attempting to prohibit the states from outlawing abortion, within their own territories? All the way through nine months of gestation? Or concerning some shorter period?

For any Congressional action, we definitely run into some Commerce Clause and pure federalism issues.

ConradBibby said...

Has anyone calculated the percentage of the country's population that resides in states where abortion is legal vs. those who live in states where, post-Roe, it's either banned or is likely to be banned? I wouldn't be surprised if the "legal" states in fact encompass 59% of the population, or something thereabouts.

who-knew said...

This is part of why I almost never believe survey results. It all hinges on the the wording of the question and the wording often seems designed to generate a predetermined result.

Dave Begley said...

Ann Althouse recently retired as one of the top constitutional law professors in the entire country. I'd sure like to hear her views on whether the federal government can constitutionally enact a nationwide abortion law.

What are the limits of the commerce clause? Can the federal government regulate the medical profession?

The above is a copy of a comment below. But I think the Althouse community would certainly like to hear the opinion of one of the top experts on constitutional law. Ann, please weigh in. The lib con law professors at Harvard and Yale will certainly be running their mouths soon.

It seems clear to me that Congress has NO authority to regulate the medical profession.

Jess said...

The Supreme Court decision determined the states, and only the states, have the power to regulate abortions. That's how the Constitution works, and this frivolous plan to buy votes will end in litigation, injunctions, and future actions of the Supreme Court to return any illegal decisions back to lower courts for review. It's a dead end street, and wasting tax payer money on this foolishness should result in public floggings.

gilbar said...

Jake asked...
if you "pass a law" legalizing the right to abortion aren't you "mak[ing] laws that give women the right to have an abortion"

you mean, like laws about Right Turn on Red?


oh! OH!
Two Wrongs, don't make a Right.. But Three Lefts DO!

John in PA said...

Ann - I think your poll would benefit from a little less granularity in the # of weeks, and a little more symmetry. Including options like "No abortions post-viability (exceptions for rape, incest, life of mother), leave the rest to the states" and "No abortions past 15 weeks (exceptions for rape, incest, life of mother), leave the rest to the states" would give us options more in line with our European counterparts. It would also allow maintaining some of the pre-Dobbs restrictions on late term abortions countrywide.

Aesop said...

This is what happens when schools graduate functional legal retards for 50 years with respect to basic government functions, and how the Constitution works.

If Congress made any such attempt, based on the current ruling, such law would necessarily be ruled unconstitutional (which it would, in fact, be) and an arrogation of one of those rights "reserved to the states, or the people", by black-letter Constitutional edict. It wouldn't even make it to the printers before it was declared moot, null, and void.

Congress can walk away from this land mine {and they will, except when they're sure it will fail outright, so they can throw red meat to their frothing base(s) without actually owning their choices], or they can attempt to pass a Constitutional amendment, but what SCOTUS has explicitly said they cannot do, just as SCOTUS itself could not do, is make or rule any such thing.

It's quite literally beyond the scope of Congress' business, and any such attempt would be stayed/injuncted/overturned within hours, and then formally if necessary, with all the judicial trimmings.

The states' legislatures may do so individually at their leisure.
They may also vote to do just the opposite, i.e. ban all abortion within their boundaries.
The Congress may not do either one.
And it doesn't matter what 59% of the people overall think.
Individual rights are not decided by polls.

That was the entire basis for overturning Roe in the first place; it invented out of whole cloth a "right" that is no such thing, and attempted to pass, via judicial overreaching fiat, an imaginary right.
SCOTUS killed that stupid idea for some good time last Friday, with a coat hanger right through its head.

So lobby your state's reps one way or the other, and be done with it, or pass a Constitutional amendment, and try to get enough states on board with that to ratify it.
There's no third way, and that's precisely what frustrates the lunatic Left so much: they know they haven't got the votes for that, and never will for any foreseeable future span.

But as Sheriff Will Teasle perspicaciously warned people in First Blood: "People go f***ing around with the law, and all hell breaks loose."

Truer words...

Joe Smith said...

What kind of abortion law would congress pass?

First trimester?

Up to the minute before giving birth?

Post-birth infanticide up until 6 months?

Democrats have shown willingness to approve of all of these things.

Devil meet details...

Meade said...

I’d like to see a constitutional amendment:

A population of People, being necessary to the existence of a free State, the right of the people to keep and bear human Babies, shall not be infringed.

JK Brown said...

Odd, you would only need a statutory right to an abortion to override other laws, either state restrictions on abortions or laws that might come into play since abortion could be prosecuted for intentionally ending a human life. We would not say we need a statutory right to gall bladder surgery as such surgery would not create a basis for a prosecutor to indict under other laws, excepting those controlling licensure of doctors, medical facilities, etc.

But the poll was crafted to use the trigger words "right", "abortion", etc. to override thought in the college-credentialed and get a conditioned response.

Lem said...

59% approve is weak weak, if we are to believe what was predicted very shortly after the leak.

I did say "abortion on demand support was a mile wide and a decimal place deep."

Kevin said...

The statute would legalize abortion. Or you could say the statute would create a right to abortion or make a statutory right out of what once was recognized as a constitutional right. But there's no need to "legalize a right." There's no law against an abortion right that needs removing. The states are free to make laws that give women the right to have an abortion.

Forget it Althouse. It's Chinatown.

Kevin said...

I'm so old I remember when these people wanted to keep laws off their bodies.

wendybar said...

How are we supposed to TRUST any of them?? This is disgusting. The more we know, the more corrupt we learn our government is. We really do live in a Banana Republic. God Help Us.

https://pjmedia.com/jchristianadams/2022/06/30/foias-reveal-progressive-money-fueling-fbi-doj-leftist-activist-and-election-official-coordination-n1609558

Gusty Winds said...

Biden just gave and interview and used the term "about a child".

n.n said...

Will they expand the scope of self-defense to be equitable and inclusive? Males by Nature also have voluntary, negotiated "burdens" h/t Obama.

Michael K said...

Polling is complicated. I took a survey design course in my Masters in Health Care Affairs class. Those who answer such questions often tend to give the answer desired by the questioner. We were taught to ask the question in several ways to eliminate bias. Many medical journal articles show that this was not done. Political polls are usually after one answer like this one was.

n.n said...

What kind of abortion law would congress pass?

First trimester?


Six weeks to baby meets granny in state, if not in process, with a compelling cause to discourage performance of human rites for social, redistributive, clinical, and fair weather causes.

Scrutineer said...

Congress doesn't have the authority to create "rights." Presumably Congress would invoke its authority to regulate interstate commerce in order to stop states from restricting abortion.

If you want to make Justice Thomas happy, tee this up for him. Go ahead, do it. He's been aching to demolish the last century of bullshit Commerce Clause jurisprudence, and he might be able to get 4 justices (not including Roberts) to back him up.

dbp said...

"The states are free to make laws that give women the right to have an abortion."

If a state had no law regarding abortion then there would be no law stopping a woman from having an abortion at any phase of pregnancy. Which is the current state of Federal law, there isn't one.

Mark said...

legalizing the "right" to abortion

The Court just got through saying that there is no "right" to commit abortion.

Ann Althouse said...

“ A population of People, being necessary to the existence of a free State, the right of the people to keep and bear human Babies, shall not be infringed.”

So we don’t get the right to keep and bear non-human babies?

Fredrick said...

Did anyone respond that Congress should pass a law granting a "right to birth"?

Rabel said...

Could be that the question started out with "codify" but was changed to "legalize" because codify was confusing or it could be that "legalize the right to abortion" sells better than "legalize abortion" with the ladies.

AlbertAnonymous said...

But nobody is trying to infringe on your right to Keep and Bear babies. It’s the opposite.

Gun control in reverse?

Hey there’s an idea. Just write that they have an absolute right to abortion IF they get the state issued permit, and then let’s see how much they like the restrictions and limitations and refusals to issue permits and delays and costs and training requirements and registries for permit holders…

Meade said...

“So we don’t get the right to keep and bear non-human babies?“

Sure, why not. What sort of non-human baby do you have in mind? Like a puppy baby?

Smilin' Jack said...

Anyone who wants to put their rights in the hands of a state legislature has never witnessed a state legislature in action. Sure, Congress is full of dumbasses, but state legislatures are full of people too dumb to get into Congress.

Yancey Ward said...

I would have added an option- used the proper powers granted to the federal government to make it explicit that if one gets a legal abortion in the Florida panhandle, they can't be tried in Alabama upon their return to Birmingham. I feel the federal courts and SCOTUS would quickly make such a ruling anyway, but nothing wrong with Congress acting first.

hombre said...

Polls, by and large, are now intended to influence not to inform. That is reflected in the question.

Right to abortion? Really?

Yancey Ward said...

The Democrats could almost certainly get a bill passed that was identical to the Mississippi law- there are easily 10+ Republicans in the Senate who would vote for such a law- Collins, Murkowski, Graham, Rubio, Romney, Cornyn, Porter, Ernst, Johnson, Toomey, and probably at least 2-3 others I am not thinking of right now. Of course, I think such a federal law would also be unconstitutional, but that isn't why Democrats haven't offered it up.

Tina Trent said...

Conrad Bibby, Ann Coulter used Guttmacher's stats from last year to break down the number of women seeking abortions who will be affected by this law -- it is appx. 100,000.

I once spoke with an older black male abortion doctor in Alabama who was trying to pass a law to require parental or guardian consent for abortions for under-aged girls. It was, to say the least, a proposal that enraged all the nice wealthy white women and gay men who sit on pro-choice boards.

He told me it would expose child molestation and always-traumatic (and more physically dangerous) late second trimester abortions, especially among young black girls because they were the people overwhelmingly most likely to wait until they were far into the second trimester to get an abortion. He was sick of seeing some child brought into his clinic six months pregnant, with her adult male rapist in hand. We need to get the women, the families, the authorities involved, he said.

It was the unwritten policy of nearly all clinics to look the other way when a child too young to consent to sex was brought in pregnant.

mikee said...

Rights are inherent, inalienable, and individually held. Rights are not created. Privilege is created under law, and rights can be supported by law in their exercise by the people, or infringed by government power absent authority to do so.

But rights are NOT within the gift of government.

Free Manure While You Wait! said...

"What does it mean to "legalize a right"? The statute would legalize abortion."

It means they are still in denial about abortion not being a Constitutional right or even the definition of what a Constitutional right is.

The Governor of New Jersey was just on CBS2 New York signing two bills, one legalizing abortion, the second one protecting abortionists and abortees. Both he and one of his state's legislators were saying that the bad, bad Court took away a right and that other rights were sure to follow.

gilbar said...

the right to keep and bear non-human babies?
Aren't ALL bear babies non-human babies? It's bad enough, that some people want to arm bears..
But now you're talking about bears having human babies? What? were they misidentified at birth?

gilbar said...

All this raises interesting questions! Do animals suffer gender dysphoria ?
Do she-bears ever feel like (KNOW THAT!) they are REALLY boy bears?

bobby said...

If you believe in the existence of natural rights - say, the right to defend yourself - and accept that such rights pre-existed our legal system, then you could see the systemic codification of such a right as "legalizing" that right.

Jersey Fled said...

So if I understand this right, 59% of voters want Congress to pass a law that the Supreme Court has just decide they have no authority to do.

n.n said...

“So we don’t get the right to keep and bear non-human babies?“

[unPlanned]Cubs in a pride parade.

Josephbleau said...

Beiden said today,

"The idea that we're gonna make a judgment that is going to say that no one can make the judgment to choose to abort a child based on a decision by the Supreme Court I think goes way overboard."

Protip: If you are in favor of abortion, don't call it a child, call it a clump of cells.

Josephbleau said...

"The Governor of New Jersey was just on CBS2 New York signing two bills, one legalizing abortion, the second one protecting abortionists and abortees."

Is an abortee the human husk containing the aborted, or is the abortee the "clump of cells" herself?

Josephbleau said...

"All this raises interesting questions! Do animals suffer gender dysphoria ? "

I have personally, reluctantly, seen dogs humping a human leg. So I assume animals have every form of dysphoria.

Josephbleau said...

"I’d like to see a constitutional amendment:

A population of People, being necessary to the existence of a free State, the right of the people to keep and bear human Babies, shall not be infringed."

Ho Ho Ho, Ho F*ing Ho. Watch your six man. Beiden's support is coalescing into college educated white women, to the exclusion of all else.

Pauligon59 said...

Does the right to an abortion compel anyone capable of perfrming one to provide it? Is it a right if nobody will provide the abortion? If you are on a desert island with the opposite sex and thing progress to the point a pregnancy occurs, but neither of you knows how to do an abortion, do you still have a right to an abortion?

If woman had the ability to cause an abortion with no outside assistance, then I would agree that women had the right to abort. But absent that capability, the most that could be said is that they are entitled to an abortion.

Greg The Class Traitor said...

but I just wanted to suggest that it would be sensible for Congress to create a statutory right to abortion in the first 10 weeks, leaving the rest of the legislative choice to the states.

It's not a Federal issue

It's not one of the enumerated powers, and it's not imposed by the 14th Amendment

Congress has no business making any law about it. And and any law it does make should be immediately struck down

Greg The Class Traitor said...

Yancey Ward said...
I would have added an option- used the proper powers granted to the federal government to make it explicit that if one gets a legal abortion in the Florida panhandle, they can't be tried in Alabama upon their return to Birmingham. I feel the federal courts and SCOTUS would quickly make such a ruling anyway, but nothing wrong with Congress acting first.

Age of Consent is 18 in FL, and 16 in AL.

It's a crime to take a 16 year of girl from FL to AL so you can fuck her.

And it should be

So why should it NOT be a crime to take a 13 week old girl from AL to FL so you can kill her?

Sorry. But if you live in a State where abortion is illegal, you can either move out and never go back, or you can have the baby and give him or her up for adoption.