Overturning Roe v. Wade Could Upend November’s Elections

From a Washington Post story by Theodoric Meyer and Leigh Ann Caldwell headlined “Overturning Roe v. Wade could upend the midterms”:

The bombshell revelation on Monday night that the Supreme Court is preparing to strike down Roe v. Wade promises to consume Washington in the months ahead and reorder the midterm elections.

A draft opinion obliterating Roe was obtained by Politico’s Josh Gerstein and Alexander Ward. “Roe was egregiously wrong from the start,” Justice Samuel Alito wrote in the draft opinion.

Our colleagues Robert Barnes and Mike DeBonis called the disclosure of an unpublished draft opinion “an extreme breach of modern Supreme Court protocol,” while noting there was still time for the draft and the votes of the justices who signed onto it to change.

Strategists in both parties were already preparing for the possibility that the court would weaken or do away with Roe in late June or early July when the court’s current term ends — but the leaked draft accelerated the timetable in a dramatic fashion.

Democrats immediately argued the expected ruling was reason for concerned voters to support the party in November’s elections.

“Republicans just gutted Roe v Wade, the Constitution’s guarantee of reproductive freedom, and will ban abortion in all 50 states, if they take over Congress,” Rep. Sean Patrick Maloney (D-N.Y.), the chairman of the Democratic Congressional Campaign Committee, tweeted. “Only Democrats will protect our freedoms. That is now the central choice in the 2022 election.”

House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Chuck Schumer (D-N.Y.) took aim at conservatives on the Supreme Court, without naming them, who testified during their confirmation hearings that they respected court precedents.

“Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation — all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century,” they wrote in a statement.

Midterm impact

The draft opinion threatens to upend the midterms in unpredictable ways.

Some Democrats argued overturning Roe would energize the party’s base of voters as well as some independent voters who until this point were less enthusiastic than Republicans about turning out to vote this year.

“It’s another reminder of just how much Donald Trump‘s victory in 2016 changed the trajectory of our country. Stopping his reelection became the single biggest reason Democrats turned out in 2020, and they will have similar impact on the midterms,” Richard Luchette, a Democratic strategist, said.

A former Republican Senate aide was more skeptical of Democrats benefiting.

“Does this motivate married suburban women for the Democrats five months post decision against a backdrop of war in Europe, high gas prices, education issues, and rampant illegal immigration? I don’t think so,” the former aide said. “This will also motivate the conservative base in an election where Trump isn’t on the ballot — although the base is already very motivated.”

A Democratic operative working on House races, who like others spoke on the condition of anonymity to discuss party strategy, said every Republican lawmaker and candidate running in a battleground state or district will be asked to weigh in, much as they were grilled on some of Trump’s most incendiary comments.

“This is going to change the dynamic of the midterms in a way that if I were [House Minority Leader] Kevin McCarthy I would be not happy about,” said the operative.

Still, the operative cautioned, Democrats would need to be careful in some swing districts to refrain from alienating voters with moderate views on abortion. They should consider echoing former president Bill Clinton’s line that abortion should be “safe, legal and rare,” the operative recommended.

Adam Jentleson, a former top Democratic Senate aide, previewed the party’s message in Senate races in a tweet Monday night: “If Democrats lose the Senate, [Senate Minority Leader Mitch] McConnell will block any SCOTUS appointment that may arise in the next two years.”

The news could also lead to a surge in fundraising for both parties. On Monday night, Democrats pulled in more than $700,000 over a tweet already raising hundreds of thousands of dollars through their ActBlue platform.

Some progressives, including Sen. Bernie Sanders (I-Vt.), Kirsten Gillibrand (D-N.Y.) and Elizabeth Warren (D-Mass.), immediately called for abolishing the filibuster to allow Democrats to pass legislation enshrining the right to abortion. But Democrats tried and failed to change the filibuster earlier this year to pass a voting rights bill, and there’s no reason to think such an effort could succeed now.

Other Democrats revived calls for expanding the Supreme Court so President Biden could nominate more liberal justices.

Republican response

Republicans, meanwhile, while praising the draft decision, focused their response on the leak itself, which they argued would further damage the court’s legitimacy.

“The Supreme Court & the DOJ must get to the bottom of this leak immediately using every investigative tool necessary,” Sen. Tom Cotton (R-Ark.) tweeted.

If the Supreme Court overturns Roe, Democrats are likely to receive the decision much differently than they would’ve a decade or two ago, when more Democratic lawmakers who opposed abortion were in office.

House Democrats demonstrated the party’s almost unanimous embrace of abortion rights in September when they passed for the first time legislation to codify a woman’s right to an abortion. Just one Democrat — Rep. Henry Cuellar (Texas) — voted against.

The measure failed in the Senate in February, with Sen. Joe Manchin(D-W.Va.) and both Republican senators who support abortion rights, Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) voting against it. Murkowski and Collins later introduced their own bill codifying Roe and a later case, Planned Parenthood of Southeastern Pennsylvania v. Casey, into law.

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