As I continue to mull the consequences of the U.S. Supreme Court’s conduct in its review of Texas’s new abortion law, I offered these thoughts at New York:
The growing brouhaha over Texas’ new law banning all abortions after six weeks of pregnancy, and the Supreme Court’s refusal to declare it unconstitutional by hiding behind its weird private-citizen enforcement mechanism, are competing for attention with other crises at this late-summer juncture. But the new controversies over abortion law are likely to remain at the center of public attention — to the point that abortion could even be a bipartisan voting issue of unprecedented significance in the 2022 midterms.
The legal calendar makes it entirely possible. Whatever the murky trajectory of legal maneuvering over Whole Women’s Health v. Jackson — the case that triggered last week’s Supreme Court order at least temporarily green-lighting a pre-viability abortion ban — compliance (so far) of abortion providers is giving pro-choice Americans a taste of what life was like before Roe v. Wade struck down state abortion bans in 1973. And perhaps more importantly, the same Court that provided five votes to smile upon Texas’ mischief will soon hear Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s direct challenge to Roe. The decision in that case will probably (given the usual big-case timetable for SCOTUS) come down in June or even July of 2022, just as the midterm election campaign is gearing up. And if, as is widely expected, the Court reverses or significantly modifies the federal constitutional right to abortion that has been in place for 48 years, it could become a major campaign issue for supporters of both parties and rare groups of swing voters in both federal and state elections. Below is a primer on how the legal fight over abortion could impact the vote next November.
Why would congressional elections be affected by a Court decision that has already been handed down?
If SCOTUS reverses Roe next year, and particularly if it’s a close and not entirely definitive decision, the salience of Supreme Court decisions (and Senate confirmations) in the immediate future could go up rather than down. Should, for example, Stephen Breyer still be on the Court when voters vote in November 2022, control of the Senate could be critically important to the confirmation of a successor — even one appointed by Joe Biden — and to the shape of the Court going forward. After the Merrick Garland saga, there is no doubt that a Senate controlled by Mitch McConnell would sit on a Biden nomination as long as it took to preserve the SCOTUS seat for a Republican presidential successor.
Beyond that contingency, the return of a pre-Roe state of affairs on abortion law would open up the possibility of a federal statute preempting state abortion laws and establishing a national standard. This kind of action would be on the table if Democrats continue to control both Houses of Congress and the presidency after the midterms. It wouldn’t actually come to pass, of course, so long as the Senate minority can block legislation via the filibuster; abortion policy is not one of those topics that can move forward via the budget reconciliation process, since it’s not budget-germane under the Senate rules. But as my colleague Eric Levitz has suggested, it’s possible the subject could add critical pressure on Senate Democrats to reform the filibuster rules, perhaps via a “carve-out” for legislation involving individual rights like the right to choose and the right to vote.
Would local elections be affected in states other than Texas?
While SB 8 will likely make Texas ground zero for abortion politics in 2022 (it will already be competitive generally thanks to the separate red-hot controversy over the GOP-sponsored voter suppression law), a reversal of Roe could make nearly every state a battleground. Yes, the immediate focus might be on Republican-controlled states where legislators and governors will come under hellish pressure to abolish reproductive rights as quickly and thoroughly as possible. But Democrats in states they control will be just as eager to consolidate a right to abortion via new or newly implemented state laws.
Most obviously, in states where the governorship or control of legislative chambers is in play, abortion laws will have a fresh urgency as a campaign platform. And it will be an issue that is difficult to ignore, even in hard-core red states where anti-abortion activists may want to push for ever-more-draconian laws, and in hard-core blue states where issues like abortion funding and provider regulation could divide some pro-choice Democrats while giving Republicans traction.
After nearly five decades of abortion politics being mostly rhetorical, and mostly dealing with marginal issues like rare late-term abortions, a Wild West period will arrive. There will be plenty of gun-fights and saloon brawls as well: As with so many other issues, the two major parties have been totally polarized on abortion policy, with pro-choice Republicans and anti-abortion Democrats being almost hunted to extinction at the level of elected officials.
Which side of the abortion fight will have the most energy in 2022?
Since Roe at least, anti-abortion activists and their aligned voters have been thought to be more focused on elections and motivated to turn out for them than their pro-choice counterparts. The reason is obvious if you think about it: The status quo has been largely pro-choice thanks to Roe, so all the energy associated with any movement for change has been associated with the anti-abortion cause. Pro-choice folk could rely (or so they thought) on the Supreme Court to protect their rights. Their opponents knew they’d have to move mountains to move the relevant Court precedents.
SB 8 has changed those dynamics overnight, which is one important reason (others are fear that SCOTUS’s favor will be temporary, and a tactical interest in playing down the immediate impact) the reaction to the law taking effect has been much less intense in anti-abortion than in pro-choice circles.
If SCOTUS goes the whole hog and kills or seriously wounds federal abortion rights next year, the topic could become a central focus of national Democratic messaging, in part because the perceived status quo would switch sides, and in part because rank-and-file Democrats are more unified than Republicans on abortion policy. According to a Pew survey earlier this year, Democrats and Democratic-leaning independents favor keeping abortion “legal in all or most cases” by an 80-19 margin, while Republicans and Republican-leaning independents want to make abortion “illegal in all or most cases” by a smaller 63-35 margin. In the past, Republicans have occasionally succeeded in creating splits among Democrats by focusing on side-issues like rare late-term abortions or abortion funding, but with the basic legality or illegality of abortion now front-and-center, the shoe may be on the other foot.
Will abortion swing voters?
While base mobilization will likely be the principal focus of those on both sides exploiting concerns over abortion policy, it’s possible the topic could help flip a slice of the small and shrinking but sometimes crucial portion of the electorate that is truly independent. All in all, self-identified indies stand pretty much where the electorate as a whole stands on abortion, with a significant but not overwhelming lean towards the pro-choice position. But again, a focus on the basic availability of legal abortion rather than poll-driven proposals to restrict when and why abortions will be permitted should help Democrats on average. And abortion politics could be especially helpful to Democrats defending the suburban congressional districts they won in 2018 and then held onto in 2020.
Certainly the salience of abortion politics in 2022 will depend on what else is in the news and on the minds of voters, and on the strategic thinking of partisan decision-makers and sometimes individual candidates. But with Democrats looking down the barrel of historical data suggesting likely midterm losses at both the congressional and the state level, any issue that could break the mold will be welcome.