The Washington PostDemocracy Dies in Darkness

The clear (but not unobstructed) path toward a national abortion ban

Senate Minority Leader Mitch McConnell (R-Ky.) meets with reporters at the Capito, on Sept. 21. (J. Scott Applewhite/AP)
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It is Senate Minority Leader Mitch McConnell (R-Ky.) who, more than anyone else, can be credited with setting the nation on a course toward the Supreme Court issuing a full retraction of Roe v. Wade. And it was McConnell who, last week, articulated where that course might end: with a federal ban on abortion passed by Congress and signed into law.

For all of the debate over abortion, for all of the nuanced explanations from Supreme Court nominees and for all of the “it’s complicated” commentary from lawmakers over the years, there is an obvious path now toward precisely the obvious outcome that has for decades been the repeatedly stated preference of the conservative right. The idea that a president who promised to nominate Supreme Court justices who would overturn Roe (Donald Trump) then nominated sharply conservative justices who were legitimately uncertain about where they might land on the issue was always dubious. In reality, the uncertainty appears to have been solely around the edges: what, exactly, such a repeal would look like.

The nuance McConnell offered in his interview with USA Today last week over a possible federal law governing abortion should be considered in light of recent events. It seems quite clear what he and his party would like to see become law, at least in broad strokes. And they may soon have the power to implement it.

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It’s not as though McConnell was subtle about this.

“If the leaked opinion became the final opinion, legislative bodies — not only at the state level but at the federal level — certainly could legislate in that area,” McConnell said, referring to the draft opinion obtained by Politico last week. “If this were the final decision, that was the point that it should be resolved one way or another in the legislative process. So yeah, it’s possible. It would depend on where the votes were.”

If the votes are there for a federal ban on abortion, there will be a federal ban on abortion.

There are two qualifiers to that, of course. The first is that the votes, in fact, need to be there, meaning that Republicans have majorities in the House and Senate that support such a ban and that there is a Republican president who will sign it into law. The second qualifier is that a majority is not enough in the Senate, necessarily, given the filibuster, something to which McConnell pledged there would be “no carve out … period. For any subject.”

Perhaps. McConnell has been consistent in his approach to the filibuster since his party has been in the minority, but he has, at times, been known to undercut his past stated precedents — as when he moved forward with Judge Amy Coney Barrett’s Supreme Court nomination in 2020 after rejecting the nomination of Judge Merrick Garland in 2016 on the grounds that it was a presidential election year. That was the first domino to all of this: Garland on the court would have meant a 5-to-4 conservative majority following two Trump nominations, and a majority that probably would have reflected the more-modest changes to Roe sought by Chief Justice John G. Roberts Jr.

But this question of votes, one that seems more abstract in a moment where Democrats control both chambers of Congress and the White House, is much closer to reality than many might recognize. As is the possibility of a filibuster-proof Republican majority in the Senate.

President Biden faces a dire situation in November, as Republicans are poised to regain both the House and Senate. The two parties are about even in generic-ballot polling conducted by The Washington Post and ABC News. Other polling shows Republicans with a distinct advantage. A close distribution of votes for Congress (as reflected by that polling) is not enough for Democrats to hold the House, particularly as redistricting across the states has shifted a dozen seats (so far) into strong GOP territory while adding no more into the deep blue range. Given historic patterns, a close popular-vote result between the two parties is unlikely; Democrats can expect to lose dozens of seats, and the majority.

In the Senate, Cook Political Report has nine Senate races in its closer “toss-up” or “lean” categories, five of them Republican. But a Republican wave election (as is expected at this point) means that incumbents such as Sen. Raphael G. Warnock (D-Ga.) are possibly at more risk than Sen. Ron Johnson (R-Wis.). It’s possible that Republicans could pick up all four of the races in which Democrats are slightly favored without losing any of their own, giving the party a 54-to-46 majority.

The real question, really, is what happens in 2024. Last month, Simon Bazelon — an adviser for the left-leaning data group Data for Progress — explored the risk for the left after that election. The first, of course, is the presidency; Biden’s reelection chances are certainly shaky at the moment. But a not-popular president at the top of the ballot probably will trickle down-ballot, too, with Democrats such as Sens. Kyrsten Sinema (Ariz.), Joe Manchin III (W.Va.) and Jon Tester (Mont.) up for likely reelection in red or purple states.

Should things not shift to the left, Bazelon wrote, the result possibly would be “President Trump or President [Ron] DeSantis, with somewhere between 56 and 62 Senate seats.”

“And this is actually worse than it might seem at first,” he said. “In recent years, Republican senators who have retired (or announced that they are retiring) have skewed heavily toward those who were willing to occasionally stand up to Trump, like Jeff Flake, Lamar Alexander, Rob Portman, Pat Toomey, and Richard Burr. If Trump returns to office, he will do so with a median Senator who is far more deferent to his wishes than the last time around.”

That’s the other part of McConnell’s point. “Having the votes” means having people willing to embrace a more-extreme position on abortion. That the Senate Republican caucus probably will be less moderate increases the odds of those votes happening.

This is not simply a reflection of the will of the public. Just as House redistricting has given a bigger advantage to Republicans this year, the structure of the Senate and the electoral college offer similar benefits to McConnell’s party. It was because minority positions were empowered by institutional advantages that Roe is on the brink of being overturned. The Republican advantage in the Senate and in presidential races — meaning that Democrats can lose power even after winning more votes — puts abortion access nationally at risk. The odds of a filibuster-proof Republican Senate majority coupled with a Republican president are low. They are not nonzero.

McConnell’s gentle downplaying of the idea of a federal ban as theoretical should be familiar. It is the quiet rhetorical discussion we hear in Senate confirmation hearings or during election-season debates. It’s not politics. Again, the words to heed are his statement that such a ban would “depend on where the votes were.” Because he doesn’t mean votes of voters. He means votes of senators, which is not the same thing.

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