A forthcoming Supreme Court ruling likely to overturn Roe v. Wade is set to drastically shake up the midterm elections, adding new urgency to key races across the country and giving Democrats renewed hope they can hang on to crucial state-level positions in a political environment that threatens their slim congressional majorities.
If the court’s decision to overturn Roe goes through, it will be one of the least popular major political moves in recent memory. According to decades of public polling, only a third of Americans, at most, support overturning the 49-year-old precedent that gives women the right to have an abortion.
Republicans are already scrambling to downplay the consequences of the ruling ― in particular, that abortion could soon be banned in roughly half of the 50 states ― while Democrats are hoping to highlight this reality as a way to cast Republicans as out-of-control extremists.
“What are the next things that are going to be attacked?” President Joe Biden told reporters on Wednesday, referring to the draft of Justice Samuel Alito’s opinion obtained and published by Politico. “Because this MAGA crowd is really the most extreme political organization that’s existed in American history ― in recent American history.” (The leaked draft opinion is not final, and could change before the court issues a final decision in the coming months.)
Biden suggested the court’s 6-3 conservative majority ― which includes multiple justices who insisted they saw Roe as settled law during their confirmation hearings ― could soon threaten same-sex marriage and other individual freedoms currently protected by Supreme Court precedent. Those concerns were echoed by other Democrats.
“It’s clear that the intent is not to stop with the issue of reproductive choice,” said Rep. Susan Wild (D-Pa.), who is running for reelection in a swing district. “What’s next? Contraception? Deciding how many children to have, or not to have children at all? Whether you can marry the person you love, regardless of gender or color? Whether women can get credit in their own names? Or buy a house? Or choose to have a job?”
At the same time, should the court formally overturn Roe, it’s unlikely that would truly alter the usual trend for midterm elections, where the party in power almost always loses seats in Congress.
Only a small minority of Americans consider abortion a decisive issue when voting, and record-high inflation and dissatisfaction with Biden are likely to play a more central role in November’s contests. And Republicans are protected from some blowback by gerrymanders in key states, and by a Senate map that gives rural white voters ― a key GOP constituency ― massively disproportionate power over American politics.
“I don’t see [overturning Roe] as being a decision point for Iowa voters,” Sen. Joni Ernst (R-Iowa) said on conservative Hugh Hewitt’s radio show on Wednesday. “They are concerned about 40-year high inflation, prices at the pump, a bad economy. That’s what they’re worried about, so I think it might have a little blip here, but not overall.”
A CNN/SSRS poll, conducted in January, shows the complexity of the issue. The survey found that a mere 26% of Americans would be “satisfied” or “happy” if the Supreme Court overturned Roe, while 60% would be “dissatisfied” or “angry.” (For comparison purposes, polling showed that roughly 3 in 10 Americans supported the idea of “defunding the police” in 2020.) But only 21% of Americans said a candidate for elected office must share their views on abortion rights, while 59% said it was just one of several factors.
“Our Democratic governor’s veto pen is really the only protection we have to protect the right to choose here in Pennsylvania.”
– Pennsylvania Attorney General Josh Shapiro (D)
Other polls indicate support for some restrictions on abortion rights. Gallup’s most recent survey on the question found that 32% of Americans believe abortion should be legal under any circumstances and 13% say it should be legal under most, while 33% say it should be illegal under most circumstances and just 19% say it should be illegal in all circumstances. That means voters could seek a still-undefined middle ground on the issue.
Abortion rights, however, are popular with two constituencies Democrats have worried about: young people, who have soured on Biden and whose turnout typically slips during midterm elections, and college-educated women, whom Republicans have aggressively courted.
Mini Timmaraju, the president of NARAL Pro-Choice America, said on a conference call Tuesday that the forthcoming ruling should energize Democratic voters in a way previous messaging on abortion rights hasn’t.
“This is the moment, the wake-up call, for not just our base voters but our allies across the spectrum,” she said. “The reproductive rights and justice movements have been telling everyone for decades this was coming, that Roe was already ineffective in large parts of the country, already ineffective for women of color, people of color. It’s been really hard to organize around it, to be candid.”
The political earthquake generated by the ruling would probably be felt most acutely at the state level, as the ruling would give state and local officials massive power over a right long protected by federal fiat. Democrats, in particular, believe a ruling to overturn Roe could help incumbent governors, gubernatorial candidates and others running for statewide office in blue-tinted swing states, including Nevada, Pennsylvania, Michigan, Maine and Minnesota.
“There’s going to continue to be a tug of war on the political side of things,” said Nevada Attorney General Aaron Ford (D). “It’s going to happen at the federal level and obviously at the state level as well. And it’s going to certainly drive the large majority of folks who still favor this constitutional right to the polls. At least that’s what I suspect.”
Michigan Gov. Gretchen Whitmer (D), for instance, had already begun petitioning the state Supreme Court to declare abortion rights protected by Michigan’s Constitution. (Right now, the state has an abortion ban on the books that dates to the 1930s.)
“No matter what happens in D.C., I’m going to fight like hell to provide access to safe, legal abortion in Michigan,” Whitmer said in a video message posted to Twitter.
Many swing states ― including Michigan, Arizona and Pennsylvania ― have Republican-controlled state legislatures that would almost assuredly pass strict abortion bans if given the chance. That’s now allowing Democrats in those states to portray themselves as the last line of defense.
“Our Democratic governor’s veto pen is really the only protection we have to protect the right to choose here in Pennsylvania,” Josh Shapiro, Pennsylvania’s Democratic attorney general, said on a call with reporters Tuesday.
For federal races, the near-certainty of a divided government in 2023 means any sweeping abortion rights legislation is an impossibility in the short term. But it’s likely to be a major issue in Senate and House contests. Democrats were particularly hopeful that the issue could provide a boost to Sen. Catherine Cortez Masto (D-Nev.), generally considered the most vulnerable incumbent in the Senate.
Voters in Nevada are among the strongest supporters of abortion rights in the country. A poll conducted in the state last year found that 65% described themselves as “pro-choice,” and the state’s constitution protects the right to an abortion up to 24 weeks. But Ford said the possibility of a federal ban will continue to fire up Nevadans.
“They’re trying to lull Nevadans into a false sense of complacency,” Ford said. “We will not rest on our laurels.”
The reaction of Cortez Masto’s most likely opponent, former Nevada Attorney General Adam Laxalt, also shows how the GOP is hiding from the implications of one of the greatest conservative policy victories in decades. Laxalt’s statement praised the leaked decision as a “historic victory for the sanctity of life,” but emphasized that abortion rights in Nevada are “settled law.”
Laxalt’s statement is emblematic of the GOP strategy on the issue ― an effort to downplay the impact of what would be a seismic policy victory for the right. Former President Donald Trump, who remains the party’s de facto leader, released multiple statements repeating his lies about the 2020 election on Tuesday. But he offered no remarks about the forthcoming decision to overturn Roe, which is only possible because of three justices he appointed.
Senate Minority Leader Mitch McConnell (R-Ky.) has tried to keep the focus on the question of who leaked the draft ruling, and instructed his charges in the Republican Senate conference to do the same. The National Republican Senatorial Committee, in a memo reported by Axios, told Republicans to become “compassionate, consensus-builder(s) on abortion policy.”
“Joe Biden and the Democrats have extreme and radical views on abortion that are outside of the mainstream of most Americans,” the memo claims, highlighting Democrats’ support for late-term abortion rights. The memo instructs Republican candidates to insist they don’t want to jail doctors ― even though many of the GOP-authored anti-abortion laws set to go into effect would do just that.
The final impact of the forthcoming ruling is difficult to predict. For decades, a strong majority of voters have supported abortion rights. Nevertheless, Democratic pollster Molly Murphy said it’s hard to tell how overturning Roe v. Wade could affect the political landscape, because it’s uncharted territory ― and voters simply haven’t believed it would happen.
“You’d see some support for Roe in the high 60s, and belief that it could be overturned in the teens or in the 20s,” Murphy, the president of Impact Research, said at an EMILY’s List conference in Washington, D.C., on Tuesday. “That massive believability gap was always an issue in terms of being able to fully deploy what we know is the fire in the bellies of not just women voters ― men voters too care about this across the country.”
“The hardest thing to do is to ask people to imagine a hypothetical that they don’t think is going to be there,” she said. “I wish I had the answer.”