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A decision to overturn Roe v. Wade might upend the midterms

A ruling on abortion rights could turn the campaign into a massive mobilizing effort over the issues of abortion, individual rights and the contrasting philosophies of the two major political parties

Protesters demonstrated at the Supreme Court for a second day on May 3 after a leaked draft opinion revealed a decision to overturn federal abortion rights. (Video: Jorge Ribas, Hadley Green, Julie Yoon/The Washington Post)
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In an already divided country, political battle lines hardened Tuesday with the prospect that the Supreme Court is poised to overturn Roe v. Wade — a move that threatens to upend the 2022 midterm elections and turn the campaign into a massive mobilizing effort over the issues of abortion, individual rights and the contrasting philosophies of the two major political parties.

Supporters of abortion rights and their Democratic allies predicted that the thunderclap heard Monday night with Politico’s publication of a leaked draft opinion by Justice Samuel A. Alito Jr. would reverberate through to the fall campaign and possibly beyond.

That, they said, could make an election that so far has largely appeared to be a referendum on President Biden and his party into a choice between Democratic and Republican governance that could narrow an enthusiasm gap that currently favors the Republicans and ultimately hold down expected GOP gains.

“The right wants to take this to a place — and I think this will be a problem for the right — to a very dark place that I don’t think Americans are prepared for,” said Democratic pollster Anna Greenberg. “Gender politics has been relatively muted for some time. This brings it to the fore and it will be dramatically different than what we’ve seen for a long time.”

Countering that view were assertions by Republicans and opponents of abortion who said their supporters too would be energized by a decision sought for decades to overturn a half-century of constitutionally protected abortion rights, and that issues such as inflation and crime will continue to influence voters’ decisions as much or more than abortion rights.

“A strong defense of life is a vote winner,” said Kristi Hamrick, chief media and policy strategist for Students for Life, one of the largest antiabortion groups. “It energizes people.”

Majority of Americans think the Supreme Court should uphold Roe, poll finds

The dueling assessments about the impact on the November elections come with substantial caveats. For one, the draft opinion does not necessarily represent the current state of the discussions among the nine justices, leaving open the possibility that the court will not go as far as the Alito draft outlines.

Nor is it certain in a country with short attention spans and what seems to be a never-ending conveyor belt of news events that such a decision will have the same political force in November as it seemed to have in the hours after the news broke.

Finally, Democrats’ claims that attacks on the right to legal abortion would galvanize their base has never been put to a full test. But there has never been a moment quite like what might be coming, adding both to the heightened concerns on the left and the unpredictability of the impact shared by both sides, despite strongly worded pronouncements.

From President Biden to congressional leaders to elected officials in both parties, the news about the court’s direction drew swift and sharp comment.

As he left for a trip to Alabama on Tuesday morning, Biden said the decision, if it holds, would represent a “radical” shift by the court and a ruling that would put other privacy rights at risk.

“If it becomes a law and if what is written is what remains, it goes far beyond the concern of whether or not there is the right to choose,” Biden said. “It goes to other basic rights.” Among them, he added, are who you marry and whether you decide to conceive a child.

Still, Democrats will have to work out possible differences over strategy if they hope to present a united front heading into November.

Senate Majority Leader Charles E. Schumer (D-N.Y.) said Tuesday the Senate will vote soon on a bill to codify Roe. But that legislation is destined to fail, offering one more example to the Democratic base of the party’s inability to have its way despite control of the White House, Senate and House of Representatives.

In a statement Tuesday, Biden said the best way to codify Roe is to elect to the House and Senate politicians who support abortion rights, emphasizing the White House focus on November and turning the election into a choice rather than a referendum.

“The Republican attacks on abortion access, birth control and women’s health care have dramatically escalated the stakes of the 2022 election,” the leaders of five Democratic Party committees said in a joint statement. “These elections will now determine whether cruel new restrictions on abortion will be put in place: whether states will be allowed to criminalize abortion and ban it even in cases of rape or incest.”

A Democratic strategist close to the White House, who spoke on the condition of anonymity to talk about possible strategies, said a singular focus on the issue of abortion will not be adequate, however.

“This is not our midterm message. An issue is never a message,” the strategist said. “The issue of whether a woman has a right to get an abortion or not needs to be wrapped in a broader frame of individual rights and a political party that is geared very much toward bullying and taking away those rights from people.”

What would happen if Roe v. Wade was overturned

Top Republicans on Tuesday focused more on the leak of the Alito draft than on the substance of what it would mean for abortion rights.

Senate Minority Leader Mitch McConnell (R-Ky.) issued a statement that said: “By every indication, this was yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law.”

He condemned Biden and other Democrats for failing to stand up for the independence of the high court.

If the Alito draft maintains the support of a majority of the justices, the court will be ruling in the face of contrary public opinion.

A Washington Post-ABC News poll released Wednesday but conducted before the latest news showed that a majority of Americans want the court to keep abortion legal. The poll finds that 54 percent say the court should uphold Roe v. Wade while 28 percent say Roe should be overturned.

The survey also shows that 57 percent oppose making abortion illegal after 15 weeks, which is what the Mississippi law now before the court says, and 58 percent oppose making abortions illegal after six weeks, in line with a Texas law approved by that state’s legislature last year.

But Republicans sought to shift the focus from those broad findings to areas where they think the Democrats are out of step with the general public.

“I think clearly the country is not where the Democrats are,” said Sen. Rick Scott (R-Fla.), who chairs the National Republican Senatorial Committee. “The Democrats want late-term abortion; they wouldn’t be able to get on board up until the moment of birth and then not have to keep the child alive. That’s not where the country is. … Public opinion doesn’t believe in late-term abortion. That’s what the Democrats are.”

His committee issued talking points for Republican officials that included the following: “When Democrats talk about Roe, what they really are talking about is court-imposed abortion on-demand until the moment of birth.”

One key question is whether a decision to overturn Roe will truly energize the Democratic base. Several Democrats said they anticipate the kind of grass-roots activity that was seen in the women’s marches the day after President Donald Trump was inaugurated in 2017 and that carried through to the 2018 midterms.

Illinois Gov. J.B. Pritzker (D) predicted “a tsunami of activism” among Democratic voters ahead of the midterms. “People thought this was settled law,” he said. “Now they are this morning awakened. Now reproductive rights and women’s rights are the number one issue and they are on the ballot.”

The issue could become central in several important gubernatorial races, especially in states such as Wisconsin, Michigan and Pennsylvania, where Republicans control the legislature but Democrats hold the governor’s office.

“I think the opposition to what Republicans have been calling for decades is going to rise up from grass roots across the country,” said Democratic strategist Stephanie Cutter. “It shouldn’t be politician driven. It should be organic and widespread, and I think it will be.”

Mobilizing female voters will become a high priority for the Democrats. Cecile Richards, former president of Planned Parenthood and now co-chair of American Bridge, said women have been under siege, both during Trump’s presidency and during the coronavirus pandemic. “Economically and emotionally, it hit so hard,” she said. “We have to make sure that women understand that voting matters, that the government makes an enormous difference in their future.”

Collins and Murkowski put on defensive after leaked Roe draft

At the White House, officials were calibrating in light of the possible move to overturn Roe. One official, speaking on the condition of anonymity to talk candidly, said the court could put the abortion issue in a different category politically than it has been since Roe was decided.

“I think this issue has been talked about, has been used in previous elections, as an abstract contrast,” the official said. “For 50 years we have not had it as a legitimate actual contrast. That’s what’s significant. It’s the ability to galvanize the Biden coalition in a way few issues have.”

Until now, abortion has motivated more Republicans than Democrats; there were more single-issue voters who opposed abortion than who supported it. Whether that will change in part depends on whether Democrats and abortion rights advocates can elevate the issue consistently between now and November.

“Democrats need energy right now more than Republicans do,” said Neil Newhouse, a Republican pollster. “You’ve got to think potentially this might weigh a little bit more on the scale for Democrats, but it will energize Republicans as well.”

Sen. Lindsey O. Graham (R-S.C.) noted that very few people are single-issue voters. “They’re out there,” he said. “There are single-issue voters. I think this election is going to be decided based on the quality of the economy and safety.”

Kristen Soltis Anderson, a Republican pollster, agreed that a decision to overturn Roe will trigger an increase in fundraising and activism, but cautioned, “We are still in a moment where gas prices are $4 a gallon, [gross domestic product] growth was negative last quarter, there is a war in Ukraine where there is no resolution in sight, and where domestic concerns around immigration and crime are significant with voters both on the right and the political center.”

Sen. Mark Kelly (D-Ariz.) who faces a difficult reelection campaign, acknowledged that people are focused on issues such as inflation, but added, “I expect that they will be focused on this too. Because if you’re a woman, or even a guy, and you’re trying to plan a family, this is a tremendous step backwards. This is the first I can recall, in my adult lifetime, when a fundamental — what we thought was a fundamental right — has been taken away.”

Top antiabortion leaders say there are early indications that people are not as opposed to tight restrictions on abortion as many previously assumed.

Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, pointed to Texas, where most abortions have been banned since September and where she argues that there has been little political fallout. A six-week ban “is enforced in Texas and the world did not collapse as a lot of people thought it would,” Dannenfelser said.

Abortion rights advocates strongly disagree. “I think [the Texas law] has motivated people to understand exactly what’s at stake,” said Kelley Robinson, executive director of Planned Parenthood Action Fund.

Greenberg said there is greater awareness of the Texas law than might seem apparent: “I don’t think Republicans can get out of their own way. If you look at the Texas law, I heard about it in focus groups. It’s the first time I ever heard abortion in a group.”

While states have been moving rapidly throughout the spring to restrict abortion access, many people weren’t aware of those legislative efforts. According to a Washington Post-ABC News poll published Tuesday, only 4 in 10 residents who live in states that recently passed abortion restrictions knew that their state had acted.

That will probably change now that a draft of the Supreme Court decision has been released, Robinson said.

“People are starting to hear, and people are understanding it,” Robinson said. “Voters woke up this morning to news that their constitutional right to abortion is soon to be a thing of the past.”

Planned Parenthood is organizing large-scale mobilization efforts ahead of November. A few days before the leaked draft, leaders announced that they would be investing $150 million in midterm election races along with several other national abortion rights groups, the largest midterm election investment Planned Parenthood has ever made.

Tell us how the potential fall of Roe v. Wade might impact you

The news also has the chance to shake up Democratic primaries where more liberal candidates can highlight the issue to distinguish themselves from centrist opponents.

In Oregon, Jaime McLeod Skinner, a Democrat running against incumbent Rep. Kurt Schrader, said in a phone interview that the news is a reminder to voters ahead of the May 17 primary that they need a true advocate in Congress as opposed to someone “we have to drag kicking and screaming to do the right thing.”

“It escalates the sense of urgency,” McLeod Skinner said in a phone interview. “A lot of people knew this was a threat, but this hammers home the distinct choices we are facing.”

Last week, Terry O’Neill, president of the National Organization for Women from 2009 to 2017, wrote in an op-ed in an Oregon newspaper that “a vote for Kurt Schrader is a vote against women’s ability to realistically make their own life choices.”

Schrader — who was the first Democratic candidate to be endorsed by Biden this year — has in the past spoken favorably about legislation that bars using federal funds for most abortions but touts his support for reproductive rights on his campaign website. Schrader tweeted Tuesday: “We can’t have two Americas for women — one where the freedom to determine their path through reproductive choice is protected and one where women are criminals for choosing that same path.”

Mike DeBonis, Josh Dawsey, Paul Kane and Seung Min Kim contributed to this report.

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