WASHINGTON — It’s taken decades, but anti-abortion activists feel like they’re on the cusp of history after the Supreme Court signaled Wednesday a willingness to weaken Roe v. Wade, and they’re already gearing up for the inevitable multifront fight that will erupt if the court rules in their favor.
“We've been working towards this goal for many years, so I think we are fully prepared,” said Carol Tobias, the president of the National Right to Life Committee. “We've got 50 state affiliates and state legislators across the country ready to take up the challenge.”
Any decision to undercut the landmark 1973 abortion precedent would upend American politics, allowing politicians in Congress and individual states to set policy on an emotionally charged issue that has been largely confined to the courts for nearly 50 years.
Analysts following Wednesday's oral arguments at the high court say the conservative majority, bolstered by former President Donald Trump’s three new appointees, appears poised to greenlight Mississippi’s ban on abortion after 15 weeks of pregnancy, which would likely punch a major hole in Roe's 24-week limit.
Their decision will likely not be known until the summer, just as the election season is ramping up ahead of November’s midterms, and no one knows how sweeping it will be.
“This has been a decadeslong battle across multiple fronts to bring together state action, the political movement to put leaders in place that would appoint and confirm the Supreme Court justices that we have now, and a cultural fight that is spurred on by the political and policy fights,” said Mallory Quigley, vice president of communications at the anti-abortion Susan B. Anthony List.
Even if the court decides to fully overturn Roe, though, it would not instantly make abortion illegal. Instead, removing the federal protections would allow states to set their own rules, making them the new front lines, while Congress could also choose to intervene.
“We're in pretty uncharted territory,” said Mary Ziegler, a professor at the Florida State University College of Law who has written several books on the history of the American abortion debate.
“It's going to raise the stakes of state elections considerably, and it's going to put pressure on Republicans in purple states to consider whether banning all abortions is really a good political move,” she said.
At least 21 states already have laws or constitutional amendments in place that would almost automatically move to ban abortion if the Supreme Court guts Roe, according to the Guttmacher Institute.
While most states with pre-Roe bans or so-called trigger laws are deeply conservative, the list also includes some political battlegrounds like Wisconsin, Arizona, Georgia — each home to Senate and gubernatorial contests next year — as well as Michigan.
Wisconsin’s ban dates back to 1849 but was never removed from the books after Roe v. Wade made it unenforceable.
The issue is already coming into play, with the Wisconsin Democratic Party calling incumbent Gov. Tony Evers, who is running for re-election next year, the “last line of defense against attacks on reproductive rights.”
Heather Williams, the executive director of the Democratic Legislative Campaign Committee, said her party's donors and leaders need to catch up to the anti-abortion movement, which long ago realized the importance of typically low-profile statehouse races. “The Supreme Court won’t save us, but Democratic state legislatures can,” she said.
Polls consistently show a majority of voters support keeping abortion legal, and Democrats are confident the issue would play to their favor if the court takes major action, expecting a backlash led by women at the state and federal levels to codify abortion rights.
But Republicans and anti-abortion activists believe they can win on the issue by portraying Democrats as radicals who would go further than most voters want — though they acknowledge it will take some convincing to make voters believe that.
“I know there's polls out there showing that a majority of Americans support Roe v. Wade. But they don't support Roe as it has been interpreted. And if they knew what Roe really did ... they would stop supporting it,” Tobias, of the National Right to Life Committee, said.
In the courts, they say, Roe has been interpreted to allow abortion up to birth in certain circumstances, so they argue anyone who has voted to codify precedent, as House Democrats did in September, has voted to affirm third-trimester abortions and to require doctors to perform abortions even if they have religious objections.
“The Democratic Party, at least the leaders in Washington, have made it very clear they won't support anything less than abortion on demand for all nine months, so it's going to be very difficult for a candidate to stand up and say they don't support their party's position,” Tobias added.
An August NBC News poll found that while a majority of Americans think abortion should be legal, they also supported restrictions, with just 31 percent believing abortion should “always” be legal. According to an Associated Press poll from June, 65 percent of Americans said abortion should be restricted in the second trimester.
The anti-abortion camp will also try to make laws like Mississippi's 15-week abortion ban seem more mainstream and less threatening, pointing to European countries generally considered more progressive than the U.S. that nonetheless have more restrictive abortion laws.
"Mississippi is one of the most, if not the most, conservative states in the entire United States, yet 39 countries in Europe would still have more restrictive laws than we do," Mississippi Gov. Tate Reeves said on Fox Business.
The Susan B. Anthony List, which along with its affiliated super PAC spent $52 million in the 2020 presidential election, has already budgeted more than $70 million for the 2022 midterms.
The group has started knocking on doors in key battleground states and chose a gubernatorial candidate for its first endorsement of the year, signaling its priorities are shifting toward state capitals.
“We want pro-life candidates to go on offense. We want our pro-life candidates to continue to join us in educating the American people,” Quigley said.
Meanwhile, a number of blue states have passed their own trigger laws to enshrine abortion rights into state law if the federal protections are removed, which could put Republicans there in a bind.
Massachusetts Gov. Charlie Baker, a popular moderate Republican who supports abortion rights, announced Wednesday he will not run for re-election, facing a tough primary challenge from a Trump-endorsed conservative who has a 100 percent rating from Massachusetts Citizens for Life.
While Democrats are counting on a backlash to energize their voters, Jeanne Mancini, the president of March for Life, said the grassroots on her side aren’t going to get complacent, even if the court gives them what they’ve been fighting for since before today’s activists were even born.
“Even if the question of abortion limitations returns to the legislative branches in the states, our work is far from over,” she said. “We work for the day that abortion is unthinkable.”