Do Dems have the ability — and the will — to counter Roe’s repeal?

·Senior Editor
·7 min read

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

The Supreme Court appears poised to strike down Roe v. Wade, the landmark ruling that has guaranteed constitutional protections for abortion since 1973, according to a leaked draft of a majority opinion that was published by Politico on Monday.

Though the ruling could change before the final decision is issued by the court, the preliminary draft indicates there are at least five justices willing to overturn the long-standing precedent that has permitted states to impose limited restrictions on abortion access but has blocked them from banning abortion outright.

If Roe is repealed, individual states will have the power to set their own laws regulating access to abortion. Almost immediately, abortion would become illegal in as many as 26 states — including a number that have “trigger” laws that would automatically ban all abortion the moment protections provided by Roe are lifted. Other states would still be free to maintain or expand abortion access as they see fit.

The impending reversal of Roe represents a major victory for the anti-abortion movement, which has aggressively — at times violently — pushed for a nationwide end to the procedure. Most Americans, however, support at least some federal protections for abortion in all 50 states.

Why there’s debate

Beyond hoping for the slim possibility that the Supreme Court's ruling changes before the final text is released, Democrats do have some options for pushing back on the impending end of abortion access in Republican-run states. But each of those tactics has its own limitations, including questions about whether the party has the political will to pursue them.

The most comprehensive step Democrats could take, at least in theory, would be to pass a law codifying abortion protections nationwide. A bill that would do exactly that, the Women’s Health Protection Act, was passed this year in the House. But even though Democrats hold a narrow majority in the Senate, most experts say it’s extremely unlikely that they can conjure enough votes to override a filibuster given the current makeup of Congress. There is some indication that there could be bipartisan agreement on a compromise bill that provides more limited protections for abortion, but it's unclear how viable that option may be.

Wrangling over abortion rights will also play out at the state level. Several Democratic governors have said they intend to turn their states into a “sanctuary” for people from across the country to receive abortions. Some blue states are already serving that purpose at a certain scale and could increase their capacity to do so if Roe is repealed. But experts say there are significant logistical and legal obstacles that could make it difficult for those states to fulfill that promise. It’s also likely, they argue, that Republican lawmakers will move quickly to put in place new restrictions that could make it all but impossible for someone to travel across state lines to have an abortion.

Another major question is how the repeal of Roe might affect results of the upcoming midterms. Democrats are hopeful that voters will rally to their side, potentially giving them enough seats in the Senate to enact nationwide abortion protections in the near future. There’s significant debate, however, over whether the issue is impactful enough to counter trends that appear to suggest the GOP will be the party that gains seats in November.

What’s next

Roe is still the law of the land at the moment and will remain in place until the Supreme Court’s final ruling is released, which is expected to happen within the next two months.

Senate Majority Leader Chuck Schumer, D-N.Y., has said he plans to bring a bill that would create nationwide abortion protections up for a vote next week. That vote is widely expected to fail.


There’s little hope for a legislative response from the current Congress

“Biden has emphasized codifying Roe as a proxy for his larger abortion messaging and has said he would sign the Women’s Health Protection Act if it were to make it to his desk. But, with anti-abortion conservatives anticipating judicial victory, it is unclear what, if anything Biden’s administration — or Democrats in Congress — can deliver legislatively.” — Amanda Becker, The 19th

The end of Roe could inspire a political movement to defend reproductive rights

“There is a good chance, however, that the far-right is overplaying its hand. American democracy is in crisis, but it is very much alive, and the prospect of losing personal rights will awaken a sense of urgency and could boost political involvement.” — Frida Ghitis, CNN

Democrats overestimate how much the issue of abortion rights will mobilize voters

“Abortion is not the powerful political issue the Left thinks it is. … Guess what? The pro-life politicians keep winning elections, especially at the state level and even when abortion becomes a major national issue.” — Editorial, Washington Examiner

Nationwide abortion protections probably wouldn’t survive even if they were passed

“It is likely that the same five justices who appear poised to overrule Roe v. Wade would find reason to strike down the Women’s Health Protection Act as exceeding Congress’s power.” — Amanda Hollis-Brusky, Washington Post

Blue states are bolstering their capacity to serve as abortion sanctuaries

“We’re at the very beginning of this. It’s just occurring to blue states that people are going to travel from out of state and maybe something should be done. No one is really getting into it in any greater kinds of depths.” — Mary Ziegler, abortion law expert, to CT Mirror

Blue states may face legal hurdles that stop them from becoming a safe haven for abortion access

“There are going to be a few states who will try to fund abortion travel and try to protect abortion providers from out-of-state lawsuits. … But if in a state like Missouri, a zealous prosecutor goes after an Illinois provider who has been providing abortions on their citizens, the courts are going to have to figure out: Can a state do that if the provider is completely following Illinois law?” — Greer Donley, health care law expert, to New York

State-level Democrats have a lot of work to do if they truly want to be safe havens for abortion

“States that want to be havens for people who need abortions should critically consider their existing policies in light of their real-life impacts.” — Amanda Jean Stevenson and Kate Coleman-Minahan, Conversation

The country will be better off once abortion laws are decided by voters, not the courts

“If the reports of Roe’s imminent demise are true, actual American voters will get to decide on abortion law for the first time in almost 50 years. It’s understandable that such a prospect would be terrifying to pro-choicers who have grown accustomed to their views on the issue being insulated from democratic accountability.” — Nate Hochman, National Review

Once Roe is gone, conservatives may feel pressure to temper their positions on abortion

“I'd be willing to bet GOP officeholders will face pressure to liberalize many of these laws once voters realize just how extreme they are and that the courts will no longer be policing their enforcement.” — Damon Linker, The Week

The end of Roe will create an entirely new legal framework that pro-choice advocates can exploit

“If legal confusions produce openings after Roe — spaces to set up new access sites and build greater networks, while finding new loopholes and ways to be ungovernable against repressive government action — we must take such advantage where we can.” — Natasha Lennard, The Intercept

Systems to promote abortion access are already in place at the local level

“Increasing abortion access through abortion funds and education on self-managed abortion, including establishing legal defense funds for abortion, isn’t just something to do while waiting for a better election outcome (maybe) to win back our rights; it’s what advocates have already been doing to survive even when Democrats win. They have secured this right even when legislators failed to.” — Melissa Gira Grant, The New Republic

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