Standing on the lawn of the US Capitol, in clear view of the supreme court, a coalition of Democratic women declared Roe v Wade was no longer the law of the land.
Nearly half a century after the court established the constitutional right to abortion, it allowed a near-complete ban to stand in Texas, the second-most populous state. Though the 5-4 decision did not address the substance of the Texas law, Democrats warn that it was a mere taste of things to come from the court – and Republicans who helped expand its conservative majority.
“When this court embraced this shameful Texas law, they brought shame to the United States supreme court,” the House speaker, Nancy Pelosi, said at a press conference on Friday, ahead of a vote on legislation effectively codifying abortion rights into federal law. “What were they thinking, or were they thinking, or were they just rubber-stamping what they were sent to the court to do?”
After her remarks, Pelosi returned to the chamber to preside as Democrats narrowly approved the bill. The vote was largely symbolic – Republican opposition in the Senate all but ensures the measure will not become law. Yet the Senate majority leader, Chuck Schumer, said he planned to bring it to the floor anyway.
The urgent push, however futile, was a reflection of just how powerful Democrats believe the issue could be in coming elections.
“We’re in totally uncharted territory,” said Cecile Richards, a former president of Planned Parenthood who now co-chairs a Democratic political action committee, American Bridge 21st Century. “This is a day that people certainly hoped would never come. But that’s where we’re at now and there’s no way to be on the sidelines.”
In Washington and beyond, Democrats are embracing the struggle over abortion, portraying themselves as the last line of defense against further erosion – or outright abolition – of a constitutional right many believed settled long ago.
Joe Biden has weighed in, promising a “whole of government” response. The justice department is suing Texas over its law, which bans abortion at roughly six weeks, before most women even know they’re pregnant.
This week, the supreme court announced it would hear oral arguments on 1 December in a case involving a Mississippi law banning abortions after 15 weeks, a direct challenge to Roe. A ruling is expected next year, before the November elections.
‘Moments of crisis’
The Democrats’ focus on reproductive rights also reflects shifting political dynamics.
Unity on abortion is a relatively recent development for the party. After successive defeats in rural America, and defections among white working class voters, Democrats won majorities in Congress with a coalition of urban and suburban college-educated voters who tend to be more socially liberal.
While Americans’ views are notoriously difficult to survey, polling has found that attitudes on abortion have remained relatively consistent. A solid majority say the procedure should remain legal with some restrictions.
A recent Monmouth University poll found that a majority of Americans want abortion to be legal in all or some circumstances. More than six in 10 said they did not want the court to revisit Roe. Among Americans with a college degree, support for keeping abortion mostly legal was even higher.
Public opinion hasn’t been a barrier for anti-abortion activists, who have aligned with the Republican party to enact laws severely restricting abortion access in states across the country. They also made the supreme court a political priority, culminating in a 6-3 conservative majority, cemented by three justices nominated by Donald Trump.
“Reproductive justice organizers were effectively out-organized in state legislatures, particularly after the Tea Party wave in 2010, and there really hasn’t been an effective response since then,” said Mary Ziegler, a legal historian at Florida State University and author of Abortion and the Law in America: Roe v Wade to the Present. But, she said, that could change as more Americans come to terms with the reality that abortion is now effectively outlawed in a state like Texas.
Mobilizing support around abortion rights becomes “easier, ironically, in moments of crisis like this because everybody agrees that criminalizing abortion would be really bad if you’re on the pro-choice side of the debate”, Ziegler said.
Democrats say fear of losing Roe is motivating voters beyond their liberal base.
“People have always believed that somehow, at the end of the day, no matter what politicians did, that the judicial system would be there to back up women,” Richards said. “That just simply isn’t true any more. Now we actually have to face the consequences of making abortion illegal.”
Anti-abortion advocates say the issue is also energizing their base.
“This moment is a culmination of years of pro-life strategy and the stakes have never been higher,” said Mallory Quigley, a vice-president of the Susan B Anthony List. She said her group was already knocking on doors in battleground states including Arizona and Georgia, seeking to mobilize “pro-life base voters” as well as those “who can be persuaded to vote for the pro-life candidate”.
Nationally, Republicans have been more circumspect.
Republicans “have long been able to talk aggressively about abortion while knowing that the most aggressive policies would either fail in legislatures or be struck down by the courts”, said Joshua Wilson, a political scientist at the University of Denver and author of The New States of Abortion Politics.
That certainty is gone now.
“If Roe is overturned or otherwise significantly eroded,” Wilson said, “the GOP will own that change.”
Even as Republicans in states like Florida, Arkansas and South Dakota promise copycat legislation, polling has found that most Americans believe the Texas law goes too far. Particularly objectionable, surveys found, is the failure to include exceptions for rape or incest and a provision effectively deputizing ordinary citizens to bring lawsuits against anyone who “aids or abets” an illegal abortion – with the potential to earn $10,000.
‘There’s so much at stake’
Democrats face a challenging electoral landscape in 2022 as they seek to defend fragile majorities in the House and Senate and defy a historical pattern in which the president’s party loses seats midterm. Strategists caution that whether abortion remains front and center to the national debate will depend on factors including the state of the pandemic and the economic recovery.
Before then, Virginia will offer a first test of how abortion rights resonate with voters.
Democrats running for statewide office in November have all seized on the Texas law as a harbinger of what is to come in Virginia if Republicans are elected.
Terry McAuliffe, a former governor running to recapture the office, is portraying himself as a “brick wall” against efforts to restrict abortion access. His opponent, Glenn Youngkin, hit back at McAuliffe in a digital ad, calling the former governor’s stance on abortion “too extreme” for Virginia.
Olivia Gans Turner, president of the Virginia Society for Human Life, said voters who oppose abortion had been mobilizing since 2020, when the Democratic governor, Ralph Northam, signed legislation that overturned longstanding restrictions.
“We in Virginia who care about the pro-life issue were already very alert and aware of the stakes,” Gans Turner said. McAuliffe’s “obsession with the subject”, she said, had helped to put it front and center in a way that she believed would further motivate abortion opponents and possibly alienate moderates.
Abortion rights activists say fear that Roe is at risk is resonating with voters across Virginia, including with those who may not have previously considered abortion a priority.
“There’s so much at stake now that Texas’s abortion ban has opened the floodgates to similar bans across the country,” said Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia, which is working to elect Democrats. “A Texas-style ban could easily come to Virginia if Glenn Youngkin is elected governor and Republicans take control of the house of delegates.”
Lockhart said she had observed an increase in enthusiasm among voters and volunteers, some of whom pointed to the Texas law.
“From what we’re seeing on the ground – the increased level of enthusiasm that we’re seeing from from our volunteers and supporters,” she said, “there absolutely is the potential that Virginians’ support for abortion rights is the difference-maker in this election.”