By now you’ve heard the news that circulated Monday night: Politico reported that there was an internal vote within the US Supreme Court to overturn the landmark Roe v. Wade ruling that allowed for access to abortion nationwide.
It’s a draft, written by Justice Samuel Alito, per the report. It is not the law of the land. More votes need to happen internally in the court and a final decision won’t be issued until June. But to the political industrial complex bombarding your email boxes with fund-raising pitches, it might as well be June already.
Politically speaking, where we go from here isn’t quite as obvious as both parties will make it out to be. Republicans will be forced to get very specific on what they want their state laws to allow (and to outlaw). That’s trickier territory than the sweeping statements they’ve made about abortion until now. And, well, any time spent on this issue is time not spent talking about inflation, and other, less-thorny political topics.
On the Democratic side, the pollsters have warned for months now that the American voter may not be as fired up about this issue as hoped. Translation: The ruling may not help as much as Democrats think it will. In the end, abortion is about the most personal of circumstances and those circumstances will drive voters’ attitudes more than screaming press releases from the right or the left.
Here are five ways politics could quickly change should this decision hold just months before the midterm elections.
1. Power centers will shift
Should Roe be overturned, it will be a triumph for social conservatives who have sought to bring the fight to the state level for decades. Prior to Roe, abortion access was a patchwork across different states, where some banned it and some allowed it.
Like the ruling that allowed same-sex marriage nationwide, Roe superseded all state laws and limited restrictions on abortion up to the third trimester of pregnancy. Overruling Roe would mean the abortion question would go back to the states.
In an era when all politics (even town select board) is driven by the conversation in Washington, overturning Roe would significantly shift the power center to state capitols.
In particular, there could be a lot of emphasis on governors’ races. While governors cannot pass abortion legislation on their own, they can veto or sign a bill into law with dramatic consequences for those seeking an abortion in ways a member of Congress cannot.
Looking ahead to the elections this fall, the states with governors’ races where this issue will be the most acute also happen to be battleground states: Arizona, Georgia, Pennsylvania, and Wisconsin. Here in New England, Maine’s governor’s race will offer the starkest divide among candidates, with incumbent Democrat Janet Mills running against former governor Paul LePage, a Republican. They disagree on abortion rights.
But nowhere in the country will this topic likely dominate on the campaign trail than in Michigan. In 1931, Michigan banned abortion and that law is still on the books. Roe superseded that law, but if Roe goes away then it will immediately be law in that state again. Incumbent Governor Gretchen Whitmer has vowed not to enforce the law, as has the state’s attorney general. Both are Democrats who favor abortion rights and both are up for reelection this year. But of course, they will face Republicans who call for enforcing the 1931 law.
2. Inflation and Ukraine will move off the top of the political agenda (temporarily, at least)
While other issues have mattered, polling suggests three major topics have driven American politics for the past year: the economy, Ukraine, and COVID. While the economy rarely leaves the discussion, abortion could very well become a defining issue heading into November 2022. This is not to say that a ruling overturning Roe would change anyone’s mind about whether abortion should be legal, but for the first time since the landmark ruling in 1973, it will put Democrats’ energy fully behind efforts to change the law.
This will mean new political institutions will develop, ads will work to galvanize an abortion rights base, and there could be a new level of activism that may be looking at decades of work until the Supreme Court has a different makeup.
That said, inflation has been a very resilient issue in polling among American voters. Time will tell.
3. The abortion debate will get super specific and super confusing
As mentioned above, one technical point here is just how abortion would be discussed in a post-Roe America. Since 1973 Americans and their politicians were basically offered something of a binary choice on abortion: Do they think the court ruling should stay, or should it go? If the ruling is overturned, then we have a harder, but very important, conversation.
For example, if abortion is to be banned in a certain place, then who is going to enforce such a law, who is going to be charged with a crime, and what is the specific charge and penalty? Is it years in prison? A misdemeanor?
Further, even for states where there are abortion rights, there is no longer a federal framework to follow. So at how many weeks should abortion be legal? Up until birth? Third trimester? Since legislators may need to put a number on the law, we could see debates over 20 weeks versus 21 weeks.
This is a conversation some states have not really had until now.
4. Technology, not courts or votes, could be the game-changer
While abortion-rights advocates may focus on the short-term strategy of winning in state capitols and the long-term strategy of pursuing a different makeup on US Supreme Court, technology may play a role in this debate in ways it has not previously played.
Unlike before Roe, women can now obtain abortions through medication up to 10 weeks into pregnancy. While it’s not currently legal for such medication to be administered by mail, if that were to change, there might be zero way to prevent a woman in any state from receiving a pill in the mail in a nondescript envelope.
Nineteen states have already banned receiving pills in the mail and another nine states are considering it, according to the New York Times.
Obviously, this process would only work if a woman knew she was pregnant before 10 weeks, knew about the pill, and had the ability to get it in time. But what if a different pill were developed that allowed women to manage their own abortions even later into pregnancy?
Indeed, the action here going forward might be more centered in the science community than in politics.
5. Democrats will once again talk about eliminating the filibuster
Democrats cannot change the makeup of the Supreme Court from now until June (other than Ketanji Brown Jackson stepping in for Stephen Breyer, but that’s not a change of vote on Roe.) Further, Democrats likely cannot take back a majority on the court for a good long time.
But there is one thing Democrats can actually do that is very real. A bill to make abortion access legal nationwide has already passed the House. It is sitting in the Senate, where it is currently dormant because of the filibuster.
Should Democrats decide this is the moment, and the issue, they could scrap the filibuster and thus vote to legalize abortion. President Joe Biden would sign that bill into law.
But Democrats said they wanted to break the filibuster on all kinds of issues in the past year, from gun laws to voting rights. In a 50-50 Senate, every Democrat (and Vice President Kamala Harris) would have to agree to break the filibuster. So far, his party has not convinced West Virginia Democratic Senator Joe Manchin nor Arizona Democratic Kyrsten Sinema to do that. It is unlikely to work this time, either.
Read more coverage
- Harvard Law professor Laurence Tribe warns Supreme Court draft opinion on Roe would unravel other rights
- Criticism of Senator Susan Collins pours in after release of draft Supreme Court opinion on Roe v. Wade
- ‘A woman’s right to choose is fundamental,’ President Biden says in wake of leaked Supreme Court draft opinion