The electoral impact of Dobbs v. Jackson Women's Health

 Admit it.  Some part of you really wants to know this.  Roe v. Wade is going to fall, and while this is a dramatic change to the legal landscape about which you probably have some rather salient attitudes, part of you wants to know what this means for the 2022 midterm elections, and beyond.  And the answer is somewhere been "I don't know" and "not much."

I will not do yet another recap of how we construct election forecasting models, but here's a thing we don't include:  big Supreme Court rulings.  Such things are not variables we include in our models.  Might we?  In principle, sure, but in historical terms, which rulings would we plug into the models, estimating effects?

Roe v. Wade was handed down in 1973, but abortion did not polarize along party lines in the way that we now see until the 1980 election.  Weird, but true.  Without that party polarization, it could not have had immediate effects, so no dice there, and that is obviously the immediate reference point.

Yet Roe was handed down five decades ago.  We, political scientists, have been running election forecasting models based on data since either WWII or Ike, depending on who does the analysis, and there have been a lot of major Court rulings in the post-WWII era.  Was Roe the biggest?  I am not certain that I would say it was the most important, so much as the most persistently contentious because the losing side never gave up.  The losing sides in cases like Brown v. Board and Loving v. Virginia gave up, and for all the Obergefell talk, you have not seen anywhere near the level of post-Roe organizing to reverse Obergefell.  And we're not even scratching the surface, just talking about a few names in your consciousness.

Bakke?  Working in higher education, Bakke comes immediately to mind for me, if not for every reader, but race-based affirmative action is, and has been a significant issue for decades.  Bakke matters.  Electoral effects?  Bupkis.  It never would have occurred to anyone to check.  Heller?  People either cheered or freaked the fuck out about that one, but no one said, hey, wait, we need to put that into our predictive models forecasting elections!  If you really want to go read about every major Supreme Court case in the post-WWII era, you'll... well, that's like, law school, or something, and kids, don't go to law school!

Is Dobbs v. Jackson bigger?  By what measure?  About half of the population are women, and there are some large estimates of the proportions of them who seek abortions at some point in their lives.  Somewhere around one in four.  By the math, that's about 1/8 of the population.  That's about the same share of the population as African-Americans, so if we are comparing the "size of the population affected," which is a crude and kind of stupid way to go about this, abortion is in the same ballpark as Brown v. Board.  Bigger by the numbers than Lawrence v. Texas or Obergefell v. Hodges, which is not a moral argument, but just a way to think through political/electoral effects, as we might hypothesize. 

The pro-life way to put it flips that around and says there are a lot of lives at stake.

Any way you frame it, this is big.  Yet here is the social science problem.  I can give you a long lecture on the importance of Lemon v. Kurtzman, which is a tricky ruling on the establishment clause of the first amendment.  Remember, the first amendment is kind of a biggie for me.  But, most people don't know that one, don't pay attention to the details, and even in '71, it didn't make public waves anywhere near the extent of Bakke, to say nothing of Roe.  Lemon matters, but in more indirect and abstract ways.  As long as my lecture on Lemon v. Kurtzman would be, it would be far longer on Buckley v. Valeo and how that decision logically led to Citizens United.  At that point, we're into my core professional work, and I can give these lectures in my sleep.  That's not to say that I have given these lectures in my sleep, but let's just say "on less sleep than those who have already graduated from college generally get."  Did Citizens United have any electoral backlash?  For all the widespread public misunderstandings, given that not one single person, beyond those who have heard my lectures, understands it?  No.  And again, that is my broader point.

To which I return.

Consider the modern history of Supreme Court rulings.  A couple of the rulings I have named are important, even if you did not know them.  Some, you probably did not remember until I named them (Bakke?).  Some, you remembered immediately, and we could keep going through this exercise, but I've made my point.

There is no historical... precedent for a Supreme Court decision having any significant effect on the electoral landscape, except potentially altering interest group/party alignments over the course of years.  See, for example, the process by which the pro-life movement aligned itself with movement conservatism, as the Republican Party became more ideologically homogeneous, and the process by which the pro-choice movement aligned itself with liberalism, as the Democratic Party became more ideologically homogeneous.  Hans Noel's book here is particularly good (Political Ideologies and Political Parties in America).  Yet that process took years, and it was not a process that flipped an election, but rather, changed the partisan-ideological landscape.

And the partisan-ideological landscape is already set in a way that will respond coherently to Dobbs, so what effect would it have?  I don't see it.

Could an unpopular ruling change an electoral outcome?

One might speculate that it could, but again, there's no precedent for it.

The argument that Dobbs is different comes from some of the math that I did above.  1/8.  That's what you call "a big number."  Of course, as I said, you can flip that around, which is why the issue is so animating for the pro-life side (get it?), but another way to look at this is the practical side.  The states that are going to prohibit abortion have already restricted abortions and closed enough clinics that in numerical terms, the impact of Dobbs may be more muted than some people expect given the fact that functionally, the pro-life side has already won so many victories.  Part of that is restrictive policy-making at the state-level, and if we're blunt, part of it is terrorism.  When you murder abortion providers, bomb clinics, and make it clear that providing abortions risks being next, you are engaged in terrorism, and terrorism has worked.  Behold, the terrorist-Supreme Court alliance.

Given all that, what will be the numerical impact of Dobbs?  Smaller than one would think if you just looked at the text of Roe.

And that means the magnitude of the change will be smaller, which mutes any potential electoral impact.

Could that understate the backlash?  Sure.  We have not seen a ruling like Dobbs.  This is big, it is sweeping, it reverses a right, it sets the stage for potentially reversing more rights... all of those observations are valid, although again, I am skeptical that Obergefell is on the table.  I could be wrong on that, and I've got my ketchup ready for the crow I'll eat if just this once, I was too optimistic, but I'm going to dare some... let's call it "rational optimism" here.  Not hope, nor anything so silly, but I just don't see it.

Regardless, the basic points are as follows.  There has never been evidence that Supreme Court rulings, no matter how important, nor prominent, affect election results, at least directly, in the short term.  Hence, there is no reason to believe Dobbs will be different.  In principle, one might speculate that it could be the exception, given the number of people affected, but a) that effect is muted by the fact that the states that will outlaw abortion have already functionally banned it, and b) that form of speculation is a form of speculation beyond the data.

So we return to existing models.  What do the models say about 2022?  Technically, we don't have the data yet, because it is only May 14, but here's what the models will say.  (C'mon.)  The Democrats do not truly have an intact majority, with Manchin in the Senate, and for some reason, they never understood that.  Nevertheless, Congress gets dilated in November, and a bunch of them get extracted, and yes, I just made an abortion joke.  What?!  You're all about defending the right to an abortion, but not the right to an abortion joke?

In tenure veritas.  Academic freedom!  I am making a point about the nature of rights, which rights are contested, and how people assess those rights.  Also, it was funny.

Ani DiFranco, performing a live version of the title cut from Dilate.  She did a song about abortion (pro-choice, of course) on her first album, but if I'm doing this, I'm doing this.  What would Ani say about me using her music to beat an abortion joke into the ground?  Don't know, don't care, but a few years back, the SJWs tried to cancel her for not being SJW enough.  Yup, she isn't pure enough for them.  Absorb that.  Ani isn't pure enough for them.  I say Ani rules.