If the leaked Alito draft in Dobbs v. Jackson Women’s Health Organization turns out to be the actual majority opinion, the threat to abortion rights won’t simply be in red states. If and when they are in the position to do so, Republicans can be expected to pursue a national abortion ban by federal statute, as I explained at New York:
Democrats tried and failed this week to codify the abortion rights the Supreme Court is apparently on the brink of abandoning. Republicans could later try to turn the tables and codify national abortion restrictions. It won’t be immediate: If Republicans take control of the House and the Senate in the 2022 midterms, President Biden’s veto pen will prevent them from acting on abortion through the end of his term in January 2025.
But what happens then? The path is treacherous for those hoping to preserve reproductive rights in at least some parts of the United States. It’s entirely possible that Republicans will emerge from the 2024 election with control of the White House and both chambers of Congress. And under those circumstances, the GOP will be under intense pressure from its base to enact federal laws that outlaw abortion even in “blue” states. Mitch McConnell even acknowledged on Sunday that once Roe is overturned a national abortion ban is “possible.”
Republicans are very likely to flip the House in 2022, and that means it’s likely to stay flipped in 2024. As Cook Political Report recently noted, the last time control of the House flipped in consecutive elections was 1954. Meanwhile, the Senate landscape in 2024 is truly horrible for Democrats. They’ll be defending 23 Senate seats, including six in states Trump carried in 2016 or 2020. Republicans, on the other hand, will only be defending ten Senate seats, all in states Trump carried twice.
So the 2024 presidential election will likely be the ball game when it comes to power in Washington. And while both Bill Clinton and Barack Obama came back from midterm “shellackings” to win reelection, it’s hardly a solid betting proposition for Joe Biden (or whoever the Democratic nominee is if he decides to retire).
Even if Donald Trump or some other Republican is inaugurated in January 2025, and the party controls Congress, the size of the GOP Senate majority could limit their options for curtailing reproductive rights at the federal level. Republicans would have to get really lucky to emerge from the 2024 election with a 60-vote Senate supermajority. But Republicans could plausibly gain a Senate majority so comfortable that abolishing the filibuster would be more feasible than it is for Democrats today.
Today Republicans passionately defend the filibuster whenever Democrats complain that it’s arcane and obstructionist. So in this 2025 scenario, could they actually flip and nuke it themselves? Absolutely. Mitch McConnell’s term as Senate Republican leader runs through 2027, and he’s shown time and again that he is shameless when it comes to the pursuit and exercise of power. And if he’s retired by then, his successor will likely be even more ideologically attuned to the GOP’s activist base, which is intensely opposed to legalized abortion.
To be sure, giving up the filibuster would be difficult for a party that has relied heavily on anti-majoritarian mechanisms to thwart the popular will on so many occasions. But it was a Republican Senate that nuked the filibuster for Supreme Court confirmations in 2017, and the drive to reverse Roe v. Wade — now apparently at its omega point — was the single most powerful reason that happened. If Republicans find themselves with an opportunity to sweep away blue-state “abortion sanctuaries,” the pressure to end what many GOP activists call an “American Holocaust” would be hard to overestimate. Don’t let talk about Republicans caring more about tax cuts or destroying environmental or labor regulations than about “divisive” cultural issues fool you. The anti-abortion movement, which supplies much of the party’s grassroots energy and small-dollar contributions, has held a mortgage on the soul of the GOP for many years; it’s perfectly capable of calling it in.
Perhaps the most difficult question for Republicans on the brink of enacting federal abortion restrictions would be where to draw the line. In the past they have promoted a national ban on abortions after 20 weeks of pregnancy, based on the specious theory that this is the point at which a fetus can feel pain. If the Supreme Court opens the door to any restrictions lawmakers choose to impose, there’s no reason to think that they will continue to advocate for a standard under which most abortions would remain legal. But do they move to 15 weeks? Six weeks? A total abortion ban? And do they recognize exceptions for pregnancies caused by rape or incest, or situations where the health of the mother is at risk? There are no obvious answers to any of these questions, other than to observe that those who think of zygotes as babies will not be satisfied by half-measures.
Senate action on abortion could also be beside the point before too long. By 2025, the anti-abortion movement may have moved on to what will almost certainly be its ultimate goal: convincing the Supreme Court to recognize a constitutional “right to life” for the “unborn” that no state and no Congress could violate.
In other words, all of today’s Republican rhetoric about “letting the states” or “letting the people” decide abortion policy isn’t going to last very long. And those blue-state residents who are consoling themselves with the thought that only red-state governments will force every pregnancy to term may not be safe for long.
