(TNS) The momentous decision by the Supreme Court to allow a sweeping abortion ban in Texas to take effect has intensified one of the most fraught issues in American politics heading into the 2022 midterm elections.
The shock could help Democrats boost turnout at a time the party is most worried about voter complacency after taking control of both houses of Congress and the presidency in 2020.
But it is a belated wake-up call to liberals who have been warned for years that a woman’s right to choose abortion was at risk every time Republicans captured the White House, Congress and state legislatures. And it will likely ramp up activist pressure on President Joe Biden and Democrats to pursue more immediate action, such as overhauling the filibuster and expanding the Supreme Court.
Ever since the Roe v. Wade decision of 1973, the abortion debate has been a flashpoint in American politics. The ruling nearly 50 years ago established a national right to abortion up until the fetus could survive outside the womb, generally understood then to be at the third trimester. On that basis, lower courts have halted many abortion bans passed by Republican-controlled states in recent years.
Weighing in around midnight on Thursday, the Supreme Court sidestepped the question of the constitutionality of Texas’ ban on abortions after six weeks of pregnancy. Instead, the majority opinion focused on procedural questions — notably, whether providers who sought to block the law could challenge it before being sued over it. The unorthodox law allows private citizens, instead of the government, to effectively enforce the ban.
Letting the measure remain in place as those procedural questions are resolved means that access to abortions is severely limited in the nation’s second-most populous state — and may signal further weakening of those protections to come when the court hears a case directly challenging Roe next year.
Abortion opponents celebrated the lack of intervention from the high court.
“For those conservatives who say there is no difference between electing Republicans and Democrats. Law enacted by Republicans in TX and upheld by Republican appointees to SCOTUS is going to save lives of thousands of children,” tweeted Rick Santorum, former Pennsylvania senator and presidential candidate.
Notably, many did not declare outright victory in the decadeslong effort to dismantle Roe. Marjorie Dannenfelser, president of the Susan B. Anthony List, a major anti-abortion group, emphasized the ruling stops most abortions in Texas “while litigation continues.”
“The Texas Legislature, acting on the will of the people, debated and passed this law with the very simple goal of protecting unborn children with beating hearts from death in the womb,” Dannenfelser said in a statement. “This is how democracy works. The American people are hungry to finally let this debate play out across the country and be given the opportunity to catch our laws up with compassion for women and children and science.”
Abortion rights supporters portrayed the court’s decision as far more consequential, painting it as a de facto end to the protections afforded by Roe.
Biden slammed the action as an “unprecedented assault on a woman’s constitutional rights.”
“Rather than use its supreme authority to ensure justice could be fairly sought, the highest court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities,” he said. The president vowed to launch a “whole-of-government effort” to see how his Departments of Justice and Health can ensure access to abortions in Texas, although it is unclear what administrative actions he could pursue.
The ruling was a huge blow to progressive groups. EMILY’s List, a political group that supports women running for office who back abortion rights, has been warning for years that those rights were at risk. It could help increase support for their candidates and cause, but it may discourage some who think it is now too late.
“The threat was real. The threat is real. The threat is here,” said Ben Ray, a spokesman for EMILY’s List. “It’s time to get to work.”
The decision underscored the political consequences of another fight in which Democrats have been losing ground: the battle for control of state legislatures, which will have tremendous power over abortion policy if Roe vs. Wade is overturned.
Republicans now have total control of 30 state legislatures, Democrats have control over 18; the parties share power in one state (Minnesota) and Nebraska has a nonpartisan, single-chamber legislature.
“People a lot of time don’t think about state-level politics when it comes to abortion because Roe and the Supreme Court has been a backstop,” said Amy Fried, professor of political science at the University of Maine. “If that backstop is taken away, states can decide to prohibit abortion or limit it to a fairly large extent.”
The Texas law and Supreme Court ruling have catapulted abortion to the forefront of the most competitive gubernatorial election of 2021. In Virginia, Democrat Terry McAuliffe had already been trying to make his support for abortion rights a defining issue in his campaign against Republican Glenn Youngkin.
In a call with reporters Thursday, McAuliffe warned that a GOP victories in the legislature and in the governor’s race would mean “we could see Virginia go the way of Texas.”
Youngkin on Wednesday deflected direct questions about whether he backs the Texas ban. He did acknowledge that he supported exceptions to abortion bans not included in the Texas law — for cases involving rape, incest or when the mother’s life is in jeopardy. He tried to portray McAuliffe’s views of abortion as extreme.
Traditionally, Republicans have been more adept at using the abortion issue to galvanize their voters, although polling suggests that in recent years, Democrats have increasingly been motivated to vote based on the issue.
Geoff Garin, a Democratic pollster, said the Texas law will help Democrats define the GOP as a party that is “off-the-reservation extreme in a way that makes voters, including moderate and swing voters, very reluctant to turn the keys of the Congress over to them.”
“Now this new Republican-led policy of banning abortion before women even know they are pregnant further cements the case that the Republican Party today is insanely out of the mainstream and not to be trusted,” said Garin, who is working on McAuliffe’s campaign.
Corry Bliss, a veteran Republican campaign consultant, said that the abortion issue motivates the bases of both parties, but that it will be a sideshow in a campaign the GOP wants to center on the “sheer incompetence” of the Biden administration.
“Sending a message about Biden will be the defining message of the midterms, just like in 2018, President Trump was leading the conversation,” Bliss said.
Even if Democrats are able to use the issue to juice turnout in the midterms — which are typically unfriendly to the party that controls the White House — wins at the ballot box may have limited impact on the federal level, where conservatives maintain a majority on the Supreme Court and legislation to enshrine abortion rights into law would almost certainly be blocked by the filibuster.
Abortion rights groups have at times benefited from the rule that requires a 60-vote majority in the Senate; if not for the filibuster, the Senate in 2018 would have passed a federal ban on abortion after 20 weeks.
But the Supreme Court’s action this week escalated calls for expanding the number of justices on the court or other changes, all of which would require an overhaul of the filibuster to be possible.
“What are we going to do about the courts? That has to be hopefully in the forefront of what the White House is thinking about this morning,” said Jamila Taylor, director of health care reform at the Century Foundation, a progressive think tank. “We know that’s going to be politically charged — conversations about the filibuster and stacking the court — but so is everything else.”