Mark P. Jones is a Professor of Political Science at Rice University
In June of 2022, the United States Supreme Court’s decision in Dobbs v. Jackson overturned the two Supreme Court decisions, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which together had governed abortion policy in the United States for nearly 50 years. Following the Dobbs decision, the rules governing abortion in the United States have gone from one national policy, under which abortion was constitutionally protected for any reason through 23 to 24 weeks of pregnancy (albeit with state variations as allowed under Casey), to 50 potentially distinct policies for each state.
About half of the 50 states are expected to retain something identical or similar to the rules enshrined by Roe v. Wade. The other half—including Texas—already have or will by the end of next year adopt more restrictive legislation, ranging from a ban on all abortions unless the mother’s life or well-being is at risk to abortion being legal for any reason through 15 to 20 weeks.
Under legislation passed during the 2021 Texas legislative session (House Bill 1280, the “Trigger Law”), following the overturning of Roe and Casey abortion is now permitted in Texas only if the mother’s life or well-being is at risk. Abortion under any other circumstances is against the law. House Bill 1280 was passed by a 19 to 12 vote in the Texas Senate (with 18 Republicans and 1 Democrat voting in favor and 12 Democrats voting against) and by an 81 to 61 vote in the Texas House of Representatives (with 79 Republicans and 2 Democrats voting in favor and 61 Democrats voting against).
Texas Voters’ Opinions on Abortion
According to a post-Dobbs survey of Texas registered voters conducted by the University of Houston Hobby School of Public Affairs, Texans are split into relatively equal camps when it comes to their preferences about the state’s abortion policy.
On one side, there is the combined 48% camp which wants to ban abortion all together (10% of Texans), permit abortion only if the woman’s life is at risk (13%) or permit abortion only if the woman’s life is at risk or in the case of rape or incest (25%).
On the other side is the combined 45% camp which wants to permit abortion for any reason through 24 (28%), 20 (5%), 15 (5%) and 12 (7%) weeks of pregnancy or if the woman’s life is in danger.
The remaining 7% of Texans, believe that abortion should be permitted through 6 weeks of pregnancy for any reason or if the woman’s life is in danger.
How Texans Feel About the Current Abortion Policy
Another way to view abortion policy is the proportion of Texans who believe a specific rule/policy governing abortion is either too restrictive or too permissive.
The same survey mentioned previously found that approximately three out of four Texans (77%) believe that the current law of the land in Texas, prohibiting abortion except if the mother’s health or well-being is at risk, is too restrictive. Substantial gender (78% of women and 77% of men), ethnic/racial (73% of whites, 81% of Latinos and 88% of Blacks) and generational (73% of Baby Boomers, 79% of Generation X, 78% of Millennials and 80% of Generation Z) majorities all hold the opinion that the current legislation is too restrictive. While more than nine out of ten (94%) Texans who identify as Democrat believe the current legislation is too restrictive, that position is only shared by 61% of Texans who identify as Republican.
This proportion of 94% of Texas Democrats who believe the rules governing abortion contained in the Texas Trigger Law (House Bill 1280) are too restrictive is very similar to the proportion (96%) of Democratic state legislators that voted against the bill. In contrast, while 100% of Republican legislators voted in favor of the Trigger Law, 61% of Texas Republicans believe the law is too restrictive. Had the legislation included an exception for rape and incest however, it would have been much closer to the preferences of Texas Republicans, since only 27% believe that a ban on abortion that only allows exceptions for the mother’s life being at risk and for rape and incest is too restrictive.
However, according to the Hobby School survey, approximately three out of four Texans (72%) also consider the policy that had existed under Roe (abortion legal for any reason through 23 or 24 weeks of pregnancy) to be too permissive. Substantial gender (70% of women and 74% of men), ethnic/racial (76% of whites, 70% of Latinos and 60% of Blacks) and generational (74% of Baby Boomers, 69% of Generation X, 75% of Millennials and 64% of Generation Z) majorities believe the rules under Roe and Casey were too permissive. Less than half (46%) of Texans who identify as Democrat believe the rules governing abortion under Roe and Casey were too permissive, a position held by 93% of Texans who identify as Republican.
In sum, abortion has historically been, and remains, a highly contentious issue in the Lone Star State. The prior rules of the game established by Roe and Casey were considered to be too permissive by a large majority of Texans. The current rules established by the Texas Trigger Law are considered too restrictive by a large majority of Texans. As a result, the partisan scenario related to abortion policy flipped. The Texas Democratic Party is out of step with the median Texas voter prior to Dobbs. The Texas Republican Party is out of step with the median Texas voter in the post-Dobbs era.
Questions for Class Discussion on Texas Abortion Policy
- What are the arguments in favor of and against every state determining its own policies governing abortion (as in the pre-Roe and post-Dobbs eras) compared to having a national policy on abortion (as was the case during the Roe era)?
- Almost half (48%) of Texans do not support abortion being legal at any time, except in the case of the mother’s life being at risk or in the event of rape or incest. How should Texas lawmakers reconcile the position of these Texans with the position of a near equal proportion (45%) who believe abortion should be legal for any reason through at least 12 weeks of pregnancy?
- If Texan Republican legislators had passed a trigger law that also contained an exception for rape and incest, only 27% of Texas Republicans would have considered it to be too restrictive. Sixty-one percent consider the current ban (except if the mother’s life is at risk) to be too restrictive. Why do you think Texas Republicans did not include an exception for rape and incest in House Bill 1280 which they passed in 2021?
- How will the Dobbs decision affect voter turnout in the November 2022 election in Texas? How will it affect the share of the vote obtained by Democratic and Republican candidates such as Democrat Beto O’Rourke and Republican Greg Abbott in the gubernatorial race?
For more ideas for teaching the US Constitution to students, give Mark’s other blog post a read.