WASHINGTON – Abortion rights advocates in Congress raged on Tuesday against the Supreme Court’s anticipated move to overturn the landmark Roe v. Wade ruling, but political scientists say the forthcoming decision could boost Democrats’ electoral chances.
After Politico obtained and published a draft of the decision that would strike down federal protections for abortion access, Chief Justice John Roberts released a statement Tuesday confirming its authenticity, calling the leak a “betrayal” and announcing an investigation into its source. The draft could change before the court issues a final decision this summer, but Democrats like Sen. Patty Murray of Washington wasted no time in rallying their voters in support of abortion access.
“I am furious at the idea that Republicans are going to take us backward – that this will be the first generation of women with fewer rights than their mothers,” Murray said on the Capitol steps Tuesday, calling the draft decision “a five-alarm fire.”
“We will not back down,” she said. “And to those who haven’t felt the weight of this moment yet, who don’t think this could happen, who don’t think it matters to them – it’s time to wake up.”
Murray, who chairs the Senate Health Committee, called for Congress to pass a law to codify a nationwide right to abortion but acknowledged that would require electing more Democrats. While Democrats hold narrow majorities in the House and Senate, the upper chamber’s filibuster rule requires 60 votes to pass most bills, and abortion rights advocates don’t appear to have enough support to change that rule.
“This will fire up the Democratic base, which otherwise might have been kind of in the doldrums,” said Aman McLeod, an associate professor of political science at the University of Idaho. “It further confirms what a lot of people believe already: that the court is a battleground for partisan politics. This could make control of the judiciary a much bigger deal for the Democrats than it traditionally has been.”
Todd Donovan, a professor of political science at Western Washington University, said that while Democrats have lost public support over issues like inflation, crime and the ongoing pandemic, the draft decision could let the party shift the focus and mobilize Democratic donors. The issue could also benefit Democrats in close races, he said, such as in Washington’s 8th congressional district, where Rep. Kim Schrier, D-Sammamish, is facing a tough re-election bid.
“It’s going to put Republicans on the defensive in a moderate district in a liberal state,” Donovan said. “I think it’s safe to assume that there’s majority support for the status quo under Roe.”
Speaking later Tuesday outside the Capitol, Sen. Maria Cantwell, another Washington Democrat, called the court’s conservative majority “dead wrong” and took aim at justices who told senators during their confirmation hearings they considered Roe v. Wade and subsequent decisions on abortion access to be settled law that couldn’t easily be overturned.
“The majority of American people support this policy as settled law,” Cantwell said. “The majority of states support this as settled law. And now we just need a few men on the Supreme Court to come clean about the intentions that they never made clear to a Senate Judiciary Committee, and have our Republican colleagues come clean about this, because they are overturning your constitutional right.”
The draft decision, authored by Justice Samuel Alito, suggests a majority of the court’s nine members support overturning the precedent set by Roe v. Wade but doesn’t indicate which justices. After Republicans blocked President Barack Obama’s nominee and President Donald Trump appointed three new justices, the high court now has six GOP-aligned members.
“We in America, the women of America, will march to protect these rights on behalf of all of us,” Cantwell said.
Jaclyn Kettler, an associate professor of political science at Boise State University, said the timing of the leaked document could make abortion access a bigger factor in this year’s elections.
“We were expecting the opinion in June, and so we would have seen it anyways before the midterm elections, but this may push abortion and Roe v. Wade into becoming a major topic of focus earlier in this midterm cycle than what would have been otherwise,” she said, adding that the leak may push more voters to view the Supreme Court as a political institution akin to Congress or the executive branch.
But although opinion polls have consistently shown most Americans support the abortion rights protected by the 1973 decision, Kettler said, it’s unclear how many supporters of abortion rights will be motivated to be more politically active if it is struck down.
A Washington Post-ABC News poll conducted last week found Americans support upholding Roe v. Wade by a roughly two-to-one margin. Gallup polls conducted over more than two decades show that while roughly equal numbers of Americans identity as “pro-life” and “pro-choice,” a majority supports abortion remaining legal with some restrictions.
Cornell Clayton, a professor of government at Washington State University, said the fact that the draft decision is out of step with public opinion “doesn’t bode well for the court.”
“It’s not a good position for the court to be in, but I do think it’s of a piece with some broader developments in our political system,” Clayton said. “We have, increasingly, a Republican Party right now that represents a very vocal minority in this country. … But because of the way our system is structured, they are able to hold a majority in the Senate, they’re able to capture the presidency through the Electoral College, and because of that they’re able to appoint a majority on the court.”
Rep. Cathy McMorris Rodgers, a Spokane Republican, released a statement Tuesday calling the leak “a breach of trust” that “will severely damage the public’s trust in the Supreme Court.”
“At this very moment, Democrats and the Left are using this breach of trust as an opportunity to spread fear and force their discriminatory pro-abortion agenda on every American,” she said, pointing to a bill supported by nearly all Democrats that would ban restrictions on abortion.
“This extreme agenda is not the will of the American people, yet nearly every Democrat in the House and Senate supports it,” McMorris Rodgers said. “This agenda must be stopped by a movement united behind our Constitutional and God-given right to life. Let’s be warriors for human dignity and human value.”
Sen. Mike Crapo of Idaho, a Republican on the Senate Judiciary Committee, wrote on Twitter that the court “must remain independent from political pressure tactics when issuing its final decision.”
“States should have the ability to protect the right to life and the rights of the unborn,” Crapo said. “The deliberate leak of a draft opinion is a brazen attempt to intimidate Supreme Court justices into ignoring the rule of law and undermines the institution of the Court.”
Scott Lemieux, an assistant professor of political science at the University of Washington, said that while the court’s majority decision could change by the time it is finalized – potentially becoming a less sweeping rebuke of Roe v. Wade – the conservative justices signaled during oral arguments that they would favor overturning the previous ruling.
While the draft decision is likely to mobilize Democratic voters, Lemieux said, Democrats still face major headwinds in this year’s elections.
“One stroke of luck for the Republican Party is that it’s likely to be extremely favorable electoral context for them in November,” he said. “Generally the president’s party does poorly in midterm elections anyway, and given concerns about inflation and the still-ongoing pandemic and so on, I don’t think that Republicans are likely to pay a price in the short term.”
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