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Why Texas’s Abortion Law May Go Too Far For Most Americans

In a matter of days, a novel abortion law in Texas has made it virtually impossible for women to access the procedure in the state — although the constitutional right to abortion is still intact, for now. The Texas law bans abortion after cardiac activity can be detected, usually about six weeks into a pregnancy. Eight other states have attempted to pass similar bans, but the ban in Texas is the first to go into effect, after the Supreme Court issued a 5-4 order saying that while it was not ruling one way or the other on the constitutionality of the law, it also wouldn’t pause the law while legal disputes unfolded in the lower courts because of the law’s unique structure.

As a result, women in Texas still theoretically have a right to an abortion — but almost none will be able to get one. According to lawyers for Texas clinics, 85 to 90 percent of the abortions in the state happen after six weeks. Clinics across the state are in chaos, with overflowing waiting rooms and patients turned away in tears. At this point, it seems very likely that the law will remain in place until the legal battles are resolved, which could take months or years, making Texas into a bizarre test case — how will Americans respond when abortion is abruptly cut off in one of the nation’s most populous states?

According to the polling we have now, the answer is far from clear. On the one hand, a majority of Americans have consistently said that Roe v. Wade, the 1973 Supreme Court case that established a constitutional right to abortion, should not be overturned. But many also support a wide range of specific restrictions on abortion, some of which contradict the Supreme Court’s standards for when and how states can regulate the procedure. That said, public opinion hasn’t really shifted on the issue even though abortion access has steadily eroded in wide swaths of the country over the past 10 years. But the fact that the Texas law directly attacks abortion in the first trimester of pregnancy — when the procedure is both most supported and most common — could galvanize public outrage in a way that past restrictions have not. 

For decades, Americans have broadly opposed overturning Roe v. Wade — despite escalating attempts by anti-abortion advocates to turn public opinion against legal abortion. As the chart below shows, 58 percent of Americans were against overturning Roe when Gallup last asked the question in May, the same share who wanted to keep the case on the books back in 1989.

Americans’ attitudes on whether states should be able to restrict abortion are more muddled than their stances on Roe might suggest, though. In Roe and subsequent Supreme Court cases involving abortion, the justices have ruled that states can’t ban abortion prior to viability, which usually occurs around 24 weeks of pregnancy. Texas’s six-week ban is an obvious and dramatic departure from that standard. Some people, of course, have more extreme views on the issue: According to a Gallup poll conducted in May, 19 percent of Americans think abortion should be illegal in all circumstances, while almost twice as many (32 percent) think it should be legal in all circumstances. But most (48 percent) fall in between, saying it should be legal only under certain circumstances.

What should those circumstances be? That’s a surprisingly difficult question to answer -- in part because Americans are generally fuzzy on how specific restrictions actually affect abortion access. For instance, according to a poll conducted by the Kaiser Family Foundation, 69 percent of Americans supported requiring abortions to be performed solely by doctors with hospital admitting privileges, a restriction that has been repeatedly thrown out by the Supreme Court for imposing too much of a burden on women seeking abortion. That could be good news for anti-abortion advocates, if it means that broad support for keeping Roe on the books doesn’t necessarily translate into opposition to specific abortion restrictions.

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But this time, things could be different. Americans are much likelier to support unrestricted abortion in the first trimester of pregnancy. And that also happens to be when most abortions occur

So while Texas and other states have imposed plenty of other restrictions on abortion, this will cut off access significantly earlier than any other restriction since Roe was decided almost 50 years ago. And that’s the key distinction. Up until now, abortion restrictions have been fairly slow and piecemeal. But now women in Texas have lost access to abortion in most cases essentially overnight.

To be sure, the avalanche of abortion restrictions over the past decade have unquestionably made it much more difficult for women to get abortions in big chunks of the country, by making the procedure expensive and inconvenient for women to obtain -- not to mention hard for abortion providers to stay open. But while the slow shuttering of clinics across the South and Midwest has had a big personal cost for people across the country, that impact hasn’t really made its way into the headlines, in part because women have gone to great lengths to obtain abortions despite the obstacles.

Now, though, for the first time in decades, the country will get a glimpse of what happens when abortion is suddenly unavailable to nearly all women in one of the nation’s most populous states. For better or worse, Americans’ views on when abortion should be legal will probably get a lot clearer.

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Amelia Thomson-DeVeaux is a senior editor and senior reporter for FiveThirtyEight.