Since Justice Amy Coney Barrett’s nomination to the Supreme Court, Democrats have suspected the end of Roe v. Wade was near. Those suspicions were confirmed in May, when a draft opinion in Dobbs v. Jackson Women’s Health was leaked to Politico and set off as blaring an alarm as possible about the coming end of national legalized abortion.
Given all the time they’ve had to prepare, the lack of any real plan or preparation by national Democratic leaders in anticipation of Friday’s Supreme Court decision, in which the high court finally overturned Roe, has been stunning.
Now that there are officially no federal abortion protections, many elected Democrats, especially in leadership, seem to be listless, resorting to platitudes of hope, perseverance, and voting as their best response to the court’s conservative majority taking away a right. It’s true that electing more Democrats could provide a long-term fix, but between now and the start of a new session of Congress, millions of Americans living in nearly half the country won’t have a right to an abortion.
“We have an election coming up in November, and we need to elect pro-choice Democrats who are going to protect abortion rights, and give us the ability to pass legislation to protect those rights across this country,” Democratic Sen. Catherine Cortez Masto, who is locked in a tough reelection race in Nevada, told Vox. “That’s the easiest and simplest path forward, and that’s what I would ask everybody to understand and get behind.”
Elected Democrats facing tough midterm elections know that just asking people to vote is not the rallying cry angry and frightened people want to hear. They are doing so anyway due to the severe limits on what the federal government can really do right now.
President Joe Biden laid out that harsh reality in an address to the nation Friday, saying, “the only way we can secure a woman’s right to choose, and the balance that existed, is for Congress to restore the protections of Roe v. Wade as federal law. No executive action from the president can do that, and if Congress, as it appears, lacks the votes to do that now, voters need to make their voices heard.”
Democrats have no quick federal fixes now, even though they nominally control the government. They find themselves in a moment that shows the limits of electoral politics, as laws restricting abortion go into effect in at least four states as early as today.
Biden doesn’t have a lot of options — but that doesn’t mean he has no options
A legislative solution may be the only way to codify Roe at the federal level, and as Biden alluded to, that’s not something easy to make happen. But in his speech on Friday, Biden did lay out some limited ways federal agencies can preserve access to abortion, both in states where it remains legal and through FDA-approved abortion pills, like mifepristone.
“Some states are saying they will try to ban or severely restrict access to these medications,” he said. “Today I am directing the Department of Health and Human Services to take steps to secure these critical medications are available to the fullest extent possible.”
Soon after the decision was made public, Attorney General Merrick Garland said the Justice Department would “use every tool at our disposal to protect reproductive freedom,” including protecting the right for women to move freely to states where abortion is legal, to access information about reproductive care, and the ability to freely attain reproductive services at clinics where it is legal. He also reiterated the department’s guidance that states cannot ban mifepristone since the FDA has already approved it.
But that guidance isn’t settled law, and some states, like Louisiana, have already tried to limit access to the medication — and whether a state can outright ban the pill is a legal open question.
The bottom line is that no one is really sure what comes next — and beyond urging pro-abortion rights Americans to elect pro-abortion rights candidates in races up and down the ballot, a dissonance is emerging between how national Democrats are behaving and the fear that many Americans, particularly women, feel right now.
Many Democrats appear out of step with their base
Dobbs decision day seemed to catch Washington politicians off guard. After voting on bipartisan gun safety legislation this afternoon, the House of Representatives is set to leave the capital for two weeks for the Fourth of July holiday. The Senate left the Hill yesterday — and some senators were on their way home when the news broke Friday.
NBC News reported that White House staffers, and first lady Jill Biden, learned of the decision by push alerts on their phones — and the press office canceled the day’s press briefing to make time for a sudden presidential address.
On Capitol Hill, House Speaker Nancy Pelosi delivered somber remarks shortly after the opinion was released, but a video of her reciting a poem was what gained traction from that address. Another video of House Democrats singing “God Bless America” had accumulated about a million views in the afternoon. Both clips appear to be fueling a sense among progressive and activist Democrats that their action isn’t meeting the moment. Meanwhile, riot police were being deployed to control angry crowds outside the court. As he ended his speech, Biden urged protesters to be peaceful and nonviolent.
Congressional action is limited now. A Senate vote to codify Roe shortly after the draft opinion leaked failed to clear a filibuster; the odds that the filibuster will be done away with now are low, despite its greatest defender, Sen. Joe Manchin of West Virginia, acknowledging that he now feels lied to by justices who voted to overturn Roe v. Wade and Planned Parenthood v. Casey. Sen. Susan Collins (R-ME), one of two pro-abortion rights Republicans in the Senate, said in a statement Friday that she’s working with Democrats on a new bill “that would codify Roe.” She did not elaborate on how the bipartisan legislation would clear the filibuster, however.
Any legislative path hinges on who controls Congress next year. House Democrats are on track to lose their majority by a significant margin; the Senate remains in play, however. Democrats would need to keep control of both chambers — and greatly expand their numbers in the Senate — to have any real hope of passing pro-abortion legislation. And that appears to be what the party is pinning its hopes on. In her remarks on Friday, Pelosi stressed Democrats need “to get two more senators so we can change the obstacles to passing laws.”
But “wait, hope, and vote” may not be a message satisfying to the Democratic base. Earlier in the day, over 100 House Democrats marched about a block from the east steps of the Capitol building to the Supreme Court. “We trust women, we won’t go back,” they chanted. Rallying in front of the court, they continued their mantra. But once at the fence, the voice of one protester rang out over the lawmakers in a video posted to Twitter: “Democrats surrendered on this.” With Roe gone, that feeling may only grow.