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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?

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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.
    – Trilarion
    Jun 24 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 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 at 23:54
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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. Jun 26 at 1:34
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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 at 8:41

4 Answers 4

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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.

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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 at 20:14
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    I'm extremely proud of my 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. Jun 26 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 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 at 19:52
  • @JamieB was any amendment passed with both support and opposition from both parties?
    – phoog
    Jun 28 at 11:46
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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.

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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 at 9:45
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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. Jun 25 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. Jun 25 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 at 2:51
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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 at 16:12
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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.

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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 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. Jun 27 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 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. Jun 27 at 21:45
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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 at 5:13
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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.

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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 at 7:55
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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 at 8:07
  • @reirab a fair point. Jun 29 at 13:45

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