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Abortion Rights to Reshape Election With Roe Precedent at Risk

Bloomberg logo Bloomberg 5/3/2022 Steven T. Dennis and Mike Dorning
A protest outside the U.S. Supreme Court on May 2. © Bloomberg A protest outside the U.S. Supreme Court on May 2.

(Bloomberg) -- Abortion rights suddenly emerged as an issue that could reshape the battle between Democrats and Republicans for control of Congress, following a report that conservatives on the U.S. Supreme Court were poised to strike down the half-century-old Roe v. Wade precedent.

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Politico reported Monday night that it had obtained the initial draft majority opinion, signed by Justice Samuel Alito, overturning the landmark 1973 Roe ruling that made the choice to seek most abortions a constitutional right for women nationwide. The document was drafted in February, and it’s unclear whether there have since been changes. Chief Justice John Roberts confirmed in a Tuesday statement that the document was authentic. 

Such a decision would hand Republicans a long-sought victory, even as it could galvanize Democrats who’ve been bracing for the prospect of losing their House and Senate majorities this November. Midterm election campaigns -- which will decide control of Congress -- are getting underway with primaries Tuesday in Ohio and Indiana.

Hundreds of protesters gathered at the court late Monday soon after the Politico report, but only a few dozen remained early Tuesday. By mid-morning the crowd had grown to about 100, including anti-abortion demonstrators and those demanding protections for abortion rights. Security barriers were in place, with a few officers on hand.

The U.S. Capitol Police released a statement saying it was working closely with law enforcement agencies “to prepare for any potential demonstrations” around the Supreme Court.

Democrats had been heading into the midterm elections hobbled by soaring inflation, the lingering coronavirus pandemic and President Joe Biden’s sagging approval ratings, all topics that Republicans have been keen to play up in their campaigns.

A decision to overturn Roe would shake up races across the country, especially in suburban battlegrounds in Pennsylvania, Wisconsin, Arizona, Nevada, New Hampshire and Georgia that will determine control of the House and Senate. The unknown is how a politically seismic court ruling changes the dynamics already in play.

“Midterm elections are generally about turnout and this type of ruling could energize the base of both parties,” said Doug Sosnik, White House political director under President Bill Clinton.

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Striking down Roe would also magnify attention on gubernatorial and legislative races around the country, as the court’s decision could return abortion rights policy to the states, where it was before Roe.

Sixteen states and the District of Columbia have the right to obtain an abortion enshrined in law, according to the Guttmacher Institute, a research organization that supports the right to an abortion.

But more than 20 states have laws already on the books that would ban some or all pre-viability abortions once Roe is overturned. 


Video: Democrats and Republicans in Senate gear up for abortion rights fight (CBS SF Bay Area)

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In a statement issued Tuesday, Biden urged voters to elect more lawmakers who support abortion rights and said he’d seek to enshrine the protections of Roe v. Wade into U.S. law.

“At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law,” Biden said.

Senator Amy Klobuchar told CBS Tuesday that the decision about abortion should rest with a woman, her family and her doctor. She called on the Senate to codify the right to abortion and said there will be “complete chaos” if the ruling moves forward as drafted, upending protections for other rights like birth control. 

The decision is one that has been sought by many Republicans in the decades since Roe was decided. Donald Trump vowed during his original campaign for White House that he would appoint justices to overturn the ruling. In office, he nominated three justices who solidified the conservative majority on the court. Politico reported that each of Trump’s appointees voted with Alito on this case after hearing oral arguments last year, although any final decisions on the issue are unknown. 

The abortion issue is likely to resonate in the nation’s suburbs, which have become the linchpin of U.S. politics as rural areas are solidly Republican and urban areas are dominated by Democrats. Democrats gained 41 seats House seats and took control of the chamber in 2018 as suburban voters turned against Trump. In 2020, Biden won 54% of the suburban vote, according to the Pew Research Center, and that played a decisive role in the five states he carried by the narrowest margins.

“The House races that matter are in the suburbs,” Sosnik said.

Democrats had rallied with a massive fundraising haul in 2020 in the weeks after the death of liberal Justice Ruth Bader Ginsburg. And they intend to use a decision that overturns Roe to similar effect.

House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer, in a joint statement, said if the Politico report is accurate, such a ruling would be “one of the worst and most damaging decisions in modern history.”

Senator Ben Ray Lujan of New Mexico other Democrats called for an end to the Senate’s filibuster rule, which requires 60 votes to advance most legislation, as a way to protect abortion rights. But in the 50-50 Senate, that still may not be enough to pass any abortion-related legislation.

QuickTake: Fetal Viability and the Fate of Abortion Laws in U.S

Republicans reacted to the leak of the draft opinion as much as the substance of it.

Tennessee Senator Marsha Blackburn Tuesday called the leaker a “radical activist that betrayed the sacred tradition of the court.” 

Senate Republican Leader Mitch McConnell has repeatedly refused to say whether he would allow a vote on any Biden Supreme Court pick if the GOP takes the majority in November and another vacancy occurs.

Earlier: Supreme Court Docket Gets Busier With More Culture-War Showdowns

McConnell more than anyone else helped engineer the conservative majority on the verge of overturning the landmark ruling. He has pointed to blocking President Barack Obama’s nomination of Merrick Garland in 2016 as among his biggest accomplishments, followed up four years later by confirming Amy Coney Barrett to replace Ginsburg shortly before the 2020 election.

McConnell in 2017 rallied Republicans to overturn the 60-vote rule to overcome filibusters of Supreme Court justices to confirm Neil Gorsuch, and later presided over the confirmation of Brett Kavanaugh.

A majority of the public has consistently supported keeping abortion legal in all or at least some cases since the mid-1970s, according to Gallup data, while only about one in five Americans say the procedure should be illegal under all circumstances. Other polls show similar trends. A Marquette University poll earlier this year found that 72% of Americans oppose overturning Roe v. Wade.

(Adds new details on protests in paragraphs 5 and 6. Adds Biden reaction.)

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