“This is an attack on women to make their own health-care decisions. Their families, it’s up to them,” said Sen. Patty Murray (Wash.), a former chair of the Democratic Senatorial Campaign Committee. “To have politicians decide to me is just frightening, and I expect a lot of voters will react to that.”
Sen. Rick Scott (Fla.), chairman of the National Republican Senatorial Committee, in contrast demurred when asked whether he believes abortion will be a motivating issue for Republican voters.
“They’re talking about inflation. They’re talking about the border. They’re talking about the Afghanistan debacle. They’re talking about parental involvement in education,” Scott said. “If you look at the polls and what people are caring about, that’s what they’re focused on.”
The differing responses framed a central question: Would Wednesday’s bombshell Supreme Court argument, where the conservative majority suggested it was prepared to sharply cut abortion rights, energize liberals after decades when the issue has been a more powerful motivator for the right?
The court’s ruling could come as late as next June, meaning it would land while campaigning is in full swing for the November 2022 congressional elections.
The reactions also underlined Democrats’ urgency to find new ways to shake up the political dynamic, as Biden’s approval ratings have plummeted and the party has struggled to make its case.
One Biden adviser, who spoke on the condition of anonymity because they were not authorized to speak on the record, said abortion was an issue that could move swing voters, particularly suburban women, back to the Democrats’ corner.
Republicans’ caution, in turn, reflected a determination not to alienate these voters. Many centrist voters began to turn away from Democrats over economic concerns, but polls suggest they would be wary if long-established reproductive rights began to crumble.
While the six conservative justices aimed tough questions at Roe’s jurisprudence on Wednesday, it is not clear whether they will vote to definitively overturn it or issue a narrower ruling. Roe, handed down in 1973, has prevented states from prohibiting abortion before the point of fetal viability, typically estimated between 22 and 24 weeks.
Wednesday’s hearing also served as a reminder of former president Donald Trump’s enduring influence on the federal bench. Trump ushered in the most conservative Supreme Court in decades, and the day’s events emboldened supporters of Trump, who has signaled interest in running for president again.
Trump sealed the loyalty of many conservatives in the 2016 campaign by releasing a list of his potential justices, all of them dubious of Roe, during the presidential campaign. That yielded three justices who were key to Wednesday’s argument — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
The current dynamics also mark the culmination of a decades-long conservative project to move the federal judiciary to the right, especially on abortion, led by such groups as the Federalist Society.
Liberals have been infuriated by that trend, though there is little evidence it has affected their voting. Democrats were particularly enraged when then-Senate Majority Leader Mitch McConnell (R-Ky.) blocked President Barack Obama from filling a Supreme Court vacancy after Justice Antonin Scalia’s death in 2016, then pushed through Barrett’s confirmation shortly before the 2020 election.
Biden on Wednesday came under new pressure from his party to do all he can to protect abortion rights. One prominent Democratic Senate candidate called for ending the filibuster to protect abortion rights, a move Biden has not endorsed.
But as Democrats geared up to run more heavily on abortion, Biden, a Catholic who does not speak often about abortion publicly, continued his cautious approach of saying relatively little, leaving questions about how much he will use his platform to boost the party’s efforts.
“I didn’t see any of the debate today,” said Biden, when asked by a reporter about his reaction to the Supreme Court argument. “And I support Roe v. Wade. I think it’s a rational position to take, and I continue to support it.”
White House press secretary Jen Psaki said Biden had “quite a busy schedule” and would be briefed by his team on the hearing. Biden believes “the Mississippi law blatantly violates women’s constitutional rights to safe and legal abortions” and is “committed to working with Congress to codify the constitutional right to safe and legal abortion,” Psaki said.
But with a swirl of other issues competing for voters’ attention — including a potentially dangerous new variant of the coronavirus, a supply chain snarl and Democrats’ unfinished domestic agenda — it was far from clear that the Supreme Court ruling would shift the political winds. Many Democrats fear an electoral wipeout in 11 months, and Republicans are increasingly confident in their chances of winning back the House and possibly the Senate, which confirms judicial nominees.
For the moment, the justices’ pointed questioning of Roe, which came months after a restrictive abortion law in Texas spurred national outrage among Democrats, triggered a political recalibration in both parties that was evident in battleground races as well as in Washington.
Rep. Val Demings (D-Fla.), running to unseat Sen. Marco Rubio (R-Fla.), fired off at least four tweets on abortion Wednesday, warning that justices “should be extremely careful not to submit to political forces by overturning five decades of established law which protects American women.”
The DSCC, the campaign arm of Senate Democrats, issued a statement drawing attention to the hearing.
“A woman’s right to make our own health care choices will be a defining issue in the 2022 midterms, and for voters it will reinforce the stakes of protecting and expanding our Democratic Senate Majority with the power to confirm or reject Supreme Court justices,” said spokeswoman Jazmin Vargas.
In contrast, when asked whether the abortion issue could factor into his reelection bid next year, Rubio took a low-key approach, saying that “it’s never been a political issue to me.”
“It’s a complicated issue, but at the end of the day, if I have to choose between what is a real, you know, right to choose, and at the same time, a real right to live, I’m going to err on the side of life,” he said in a brief interview at the Capitol. “So that’s been my position pretty consistently, and there’s no mystery about it.”
Other Republicans emphasized that if the court does strike down Roe, each state would decide whether to outlaw it, meaning it would almost certainly remain legal in Democratic-leaning states.
“I think that there’s a lot of misunderstanding about what the Supreme Court may do and what its impact would be,” said Sen. John Cornyn (Tex.), who has previously helmed the Senate Republican campaign arm. “Abortion is still going to be available in the United States, but it’s going to be decided on a state-by-state basis.”
Democrats counter that this would still leave disadvantaged women in Republican-led states with few options.
Abortion rights advocates have argued that if the court strikes down Roe v. Wade, it would empower dozens of states to ban the procedure in all but the most limited of circumstances. Democrats eyeing local races seized on that threat Wednesday.
“We must invest in, organize, and elect Democrats to state legislatures where they can enshrine these and other fundamental rights,” said Democratic Legislative Campaign Committee executive director Heather Williams in a statement. “The Supreme Court won’t save us, but Democratic state legislatures can.”
Many Democrats privately say their House majority is all but lost, given Biden’s low poll numbers, the effects of GOP gerrymandering and the historical pattern of the president’s party losing seats in the midterms.
But the Senate, which is evenly divided, stands a better chance of staying Democratic, since more Republicans are retiring or up for reelection. The Supreme Court decision has the capacity to resonate more strongly in the fight for the upper chamber, which confirms Supreme Court justices.
Some Democrats also called for federal lawmakers to prepare contingencies.
“Democrats in the Senate must immediately scrap the filibuster and pass the Women’s Health Protection Act to protect abortion rights,” said John Fetterman, a leading Democratic candidate for U.S. Senate in Pennsylvania.
Biden supports the legislation Fetterman cited, which would codify abortion rights, but he has stopped short of endorsing the end to the filibuster that would be required to pass it. Liberal activists continue to apply pressure on the president to use his visibility and influence to change to dynamic, and Wednesday’s hearing signaled their calls were unlikely to abate.
Some liberals have also called on Biden to embrace a controversial idea to expand the Supreme Court to include more justices, which he could then appoint. Biden assembled a commission to explore court reforms that has released draft materials suggesting a court expansion would bring a host of problems. The commission is preparing a final report to submit to the president.
Biden has vowed to nominate a Black woman to the Supreme Court when there is a vacancy. Many in the party are nervously watching Justice Stephen G. Breyer, and some have been putting public pressure on the liberal jurist to retire before it gets too late in Biden’s term. With the Democratic Senate majority in peril and abortion rights in the balance at the Supreme Court, that pressure could intensify in coming months.
“I am really concerned, more than I ever have in my lifetime,” Murray said.
Robert Barnes and Tyler Pager contributed to this report.