In just a week, the leaked draft Supreme Court opinion that could overturn Roe v. Wade has transformed US politics.
Every major politician with power in the country, and those striving for it, are facing sudden, profound and sometimes treacherous questions over abortion ahead of the Supreme Court’s final ruling, which could differ from the draft. Some also sense huge political opportunities.
Democratic governors are vowing to stand firm for abortion rights against Republican legislatures seeking to ban the procedure, even without exceptions for rape and incest in some cases. National Republican leaders are navigating a new test that could complicate what was expected to be a favorable midterm election environment for them.
Senate Minority Leader Mitch McConnell, for instance, offered Democrats an opening when he let slip in an interview with USA Today that it was possible a future Republican-led Senate could vote to outlaw abortion nationwide. His GOP Senate colleagues quickly sought to downplay that remark.
The current Democratic-led Senate will, meanwhile, vote Wednesday on a bill codifying abortion rights. It’s expected to fail, since there may not even be enough Democrats in favor to get a simple majority, let alone reach the 60-vote threshold needed to usher most major legislation into law. But the vote will be an important symbolic moment that shapes future action on the issue.
“Every American is going to see where every senator stands,” said Senate Majority Leader Chuck Schumer, a New York Democrat, on Monday.
This does seem like a clarifying political moment.
The left suddenly has an issue to fight on, which just might mitigate a political tempest for President Joe Biden and other Democrats in November, as they point to national polls showing a majority of Americans support keeping Roe in place. The right sees a decades-long political mission to overturn the landmark ruling at the cusp of fruition, while some conservatives are pushing to go further with total bans on the procedure.
Both sides can sense a fundamental shift that could change the country socially and legally, potentially for generations, and that could sharpen the already acute cultural estrangement between red states and blue states. In places like Texas, the gulf could widen between liberal cities and conservative rural areas. Often left out of the conversation, however, are the people whom these changes would affect the most. Minority women, for example, are likely to bear the brunt of any new legal changes since they already have worse health care and outcomes.
It’s only been a week since the Politico story about Justice Samuel Alito’s draft opinion hit the internet. But its shock waves have since slammed into pretty much every state, every lawmaker and every candidate in 2022.
The reason for this is twofold. First, the legal, social, political and scientific issues surrounding abortion are emotive. But this new phase of the abortion debate is different. Before the emergence of Alito’s stunning draft opinion, questions about the issue were to some extent hypothetical, since many Americans didn’t see Roe as under threat. Now, depending on a final Supreme Court vote expected in the coming weeks, the federal right to an abortion could well be swept away.
The ultimate political shakedown will take months to unravel. But there is a new political reality.
“It’s raised people’s awareness that this isn’t just something that everybody is talking about in the abstract, but this could really happen in states across America,” Democratic Rep. Debbie Dingell of Michigan told CNN’s Jake Tapper on Monday. “I do think that people suddenly are being reminded in a way that, it was not there the last few months, that their votes have consequences.”
The practical impact of a Supreme Court decision to tear down Roe v. Wade would be to return the issue to state legislatures. That has imbued this fall’s state elections – for statehouses and governor – with greater significance.
Take a state like Pennsylvania, for instance, which currently has a Republican-controlled state House and Senate and a term-limited Democratic governor, Tom Wolf. If the GOP wins full control in Harrisburg, it could seek to ban access to abortions in the Keystone State. Most Republican gubernatorial candidates have staked out strong anti-abortion stances. In a gubernatorial debate, state Sen. Doug Mastriano seemed to liken the fight to abolish abortion to the movement to abolish the slave trade in the late 18th and early 19th centuries by invoking William Wilberforce, a British politician who led that movement. State Attorney General Josh Shapiro, a Democrat running for governor, has warned that unless he wins the race, abortion will be illegal in Pennsylvania.
“The next governor will have a bill on his desk that bans abortion. Let me tell you something: Every one of those guys will sign the bill,” Shapiro said, referring to Republicans, in Wilkes-Barre on Saturday, according to the Pittsburgh Post-Gazette.
Voters in other states are facing similar choices. In Wisconsin, Democratic Gov. Tony Evers, who has vetoed several bills aimed at curtailing legal abortion, is running for reelection in a swing state where Republicans control both chambers of the legislature. The issue could also play in the US Senate race, where Republican Sen. Ron Johnson has high unfavorable ratings. Wisconsin Democrats will be keen to drive out younger voters and women who might be motivated by the abortion issue.
In Michigan, Democratic Gov. Gretchen Whitmer, who’s also running for reelection, is fighting in court to block implementation of a 1931 state law that could come back into force if the Supreme Court overturns Roe v. Wade and could make Michigan one of the most restrictive anti-abortion states. These are all examples of campaigns in which Democrats hope that invigorated turnout from voters who care about abortion rights could push them over the line, despite voter preoccupations with soaring gas prices and high inflation in the national context.
But these states also offer a glimpse of the opening for Republicans to exert extraordinary change across the country if the high court empowers states to set their own abortion laws.
The Republican Senate leader, along with ex-President Donald Trump, is most responsible for building a Supreme Court majority that could overturn Roe v. Wade. Without the Kentuckian’s blockade of then-President Barack Obama’s Supreme Court nominee before the 2016 election and the swift confirmation of Trump’s pick days before the 2020 election, it’s unlikely a potential anti-abortion majority would exist on the high court.
McConnell made strenuous efforts last week to avoid being drawn into the political uproar, seeking to focus instead on the unprecedented leak from the Supreme Court. His strategy was of a leader keen to see where the fallout settled.
But in his interview with USA Today, McConnell said “it’s possible” that the issue could be resolved in the legislative process in the future. He did caveat that by saying that if he were majority leader, he would not sweep away the filibuster requirement, which would probably be necessary to pass a ban on abortion. And as long as Biden is President, such a Senate bill would face a certain veto.
Still, McConnell’s comment, which was remarkably blunt from such a taciturn public speaker, may also have given Democrats an opening to galvanize their voters by arguing a Republican-led Senate would outlaw abortion. A new digital ad by Democratic Sen. Maggie Hassan of New Hampshire, for example, which accuses McConnell of mounting a “decades-long crusade to criminalize abortion,” underscores that point.
Which is why Senate Republicans quickly mobilized to shut down the idea, CNN’s Manu Raju, Melanie Zanona and Ted Barrett reported Monday evening.
“I don’t think it’s really an appropriate topic for Congress to be passing a national law on,” said Sen. John Cornyn of Texas, a member of McConnell’s leadership team.
Even Missouri conservative Josh Hawley sought to distance himself from the idea. “That wouldn’t be my priority out of the gate,” the Republican senator said. “I think it would be better for states to debate this, allow it to breathe and for Congress to act where there’s national consensus.”
Asked on Monday if he would put an abortion ban on the Senate floor under a possible GOP majority next Congress, McConnell didn’t directly answer, instead pointing to his floor remarks where he said he would “never support smashing the legislative filibuster on this issue or any other.”
“I addressed that earlier today,” he told CNN.
But McConnell’s words will live in countless Democratic campaign ads, even if the most immediate legislative changes sparked by a Supreme Court vote to overturn Roe will likely be in the states. History suggests that Democrats should also take seriously McConnell’s willingness to use power he accrues.
There were also signs Sunday that while the end of Roe v. Wade would validate a decades-long conservative campaign, some Republicans are not yet ready for the political consequences.
Mississippi Gov. Tate Reeves, for example, struggled to answer questions from Tapper on “State of the Union” about whether the legal reasoning relied upon in the draft could be used for draconian measures such as bans on birth control.
“It’s not something that we’ve spent a lot of time focused on,” Reeves told Tapper, in an equivocal answer that is unlikely to harm him politically in his deep red state but that is sure to be used by Democrats in their broader campaign.
But Republicans also see an opening to use the renewed attention on abortion – specifically in this spring’s primaries. In Georgia, where former Sen. David Perdue is running a lagging Trump-backed challenge to the sitting governor, he called for a special legislative session to enforce a ban on abortion if Roe v. Wade is overturned, as he tries to court base voters.
It remains to be seen whether Democrats can effectively use the issue to rev up their base and peel off enough suburban moderates to keep midterm elections in Georgia as close as the state was in 2020, when Biden narrowly won it. But the Peach State’s candidates, like their counterparts nationwide, must all wrestle with this month’s sudden political twist – however the Supreme Court finally comes down on the issue.