Whether or not the draft copy of a Supreme Court opinion published by Politico Monday night ends up being the final victory conservatives have sought in overturning Roe v. Wade, the pressure now shifts to elected Democrats to do something — anything — to protect abortion rights.
They have few options in Congress, but Senate Democrats are preparing to take their pro-abortion rights message to voters. Party officials and elected Democrats told Vox on Tuesday they are planning to make abortion, and protecting reproductive rights, a central part of their efforts to hold on to their Senate majority — and contrast the party’s support of abortion rights with Republican efforts to restrict abortions, regardless of whether the Supreme Court strikes down Roe.
The Politico report Monday night caught many lawmakers by surprise. The decision reached them through texts and phone calls at home and on the road and, in one case, halted the conversation as a group of bipartisan senators dined. Sen. Alex Padilla (D-CA), who was at that dinner, said he saw a news alert on Sen. Chris Coons’s (D-DE) phone. “It got quiet pretty quickly,” Padilla said.
Conservative Justice Samuel Alito’s draft opinion made clear what had long been expected on Capitol Hill: that the high court seems poised to overrule Roe and Planned Parenthood v. Casey, the two landmark cases that affirmed a constitutional right to an abortion.
But suddenly, the clock had sped up.
“It was almost impossible to fathom,” Sen. Tina Smith (D-MN) told Vox about reading the draft. Smith is a former Minnesota Planned Parenthood executive, who has a long record of advocating for abortion access. Justice Alito was “essentially saying to all of those women, ‘I know better than you, what’s best for you,’” she said.
But that’s the kind of message that Smith and other Democratic senators think voters need to be hearing right now. Smith said plainly that Democrats do not have the votes in the Senate to codify abortion rights as law (even if they were to abolish the filibuster, which they also don’t have the votes to do). But electing pro-abortion rights Democrats at the local, state, and national level could provide some safeguards against further attacks on reproductive rights, like the strategy anti-abortion activists are reportedly preparing to push for a nationwide abortion ban.
“This is a moment of accountability,” Smith said. “But what we have to do now is to organize. We have to elect more Democrats. We have to take this case to voters in every state in the country and help them understand the stakes.”
Those stakes extend beyond Roe, since the draft opinion suggests an opening for conservative attacks on other protections, like same-sex marriage, and rights rooted in the right to privacy.
This portion of Alito’s opinion striking down the right to abortion (about Due Process rights under the 14th Amendment) would also apply to the right to contraceptives, interracial marriage, sexual freedom, same sex marriage. All are at risk if 4 justices join Alito. Stunning. pic.twitter.com/IO041UGJeV— Robert J. DeNault (@robertjdenault) May 3, 2022
Alito's draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not "deeply rooted in history." https://t.co/4690k0KG1F pic.twitter.com/urF7A02INU— Mark Joseph Stern (@mjs_DC) May 3, 2022
“If this draft opinion becomes the final ruling of the court, it has far-reaching implications for family planning, the right to use contraception, and the right of LGBTQ people to love who they choose to love,” Sen. Catherine Cortez Masto (D-NV) said.
Cortez Masto, who is running for reelection in a state where President Joe Biden underperformed in 2020, sees abortion rights as a galvanizing issue for Nevada voters and is making it a central part of her campaign. (She was preparing remarks to be delivered at a gala for the pro-abortion rights group Emily’s List when she learned about the draft opinion.) In 1990, the state reaffirmed the right to an abortion in a ballot measure that passed with the support of more than 60 percent of voters — support that has only grown since then, according to recent surveys. Together, these factors could lend her additional support, which she needs as an incumbent with low polling numbers in a midterm year.
Smith sees a similar picture in Minnesota, where Democrats are defending the state House of Representatives (where they hold a four-seat majority) and governorship. Though the state constitution protects abortion rights through the right to privacy, Smith said she worries that could change under Republican control. “I will be doing everything I can to make sure that candidates who support this fundamental freedom and autonomy for women around abortion rights win those elections,” she said.
That strategy to bring abortion rights to the front of Senate campaigns may unfold in battleground states like Arizona, Nevada, and New Hampshire, where support for abortion rights remains high, and in other states where Democratic incumbents are already vulnerable. The ambivalent reaction of many Republican lawmakers and conservative figures on Tuesday also suggests that the decision might come back to haunt the GOP.
But not all Democrats are united in vocal support for abortion rights, or on the same page of a unified Democratic strategy to campaign on and codify Roe. House Democratic leadership is still backing an anti-abortion Democrat’s reelection effort in Texas, and Sens. Joe Manchin (WV) and Kyrsten Sinema (AZ) have reaffirmed their commitment to the filibuster as more progressive members of their caucus like Sen. Elizabeth Warren (D-MA) have called for an exception to the rule to protect abortion rights. Manchin and Sen. Bob Casey (D-PA) have also signaled opposition to codifying Roe, given their stances on abortion.
Those obstacles, and an absence of a plan outside of winning elections, could also dampen the energy of the most activist wing of the Democratic Party, including young people frustrated by a seemingly disconnected Democratic leadership.