The Senate considered a bill on Wednesday that would have kept abortion legal nationally if Roe v. Wade were overturned, a development that’s expected to come this summer after a draft Supreme Court opinion reversing the precedent was leaked.
The Democrats held the vote despite the legislation having no chance of succeeding in the evenly divided chamber. In that way, the move was win-win for them: pass a law that’s a key part of the party agenda, or see it fail thanks to the Republicans, allowing them to highlight GOP opposition to Roe. As expected, on Wednesday afternoon every Republican senator (and one Democrat) voted to block the bill from advancing.
For all the public declarations of support for Roe, polls show public confusion about what Roe does — and some suggest that support drops if people have more clarity.
The Democrats are smartly doing what they can to keep the public’s focus on the landmark 1973 decision that found American women generally have a right to abortion until a fetus is viable. Roe is broadly popular, Democrats realize, and polls show strong majorities oppose overturning the decision. The issue gives Democrats something to push in purple regions ahead of November midterm elections in which they could lose control of both houses of Congress.
Republicans, for their part, are wise to want to contest the midterm elections on different terrain. They are heavily favored in the midterms due to President Joe Biden’s low job approval ratings, high inflation, historical trends and a general public unease with the direction of the country. Injecting uncertainty about abortion access into GOP-run areas complicates matters for Republicans, especially as they try to compete in bluer states. But they are still making a tactical mistake: It is better to confront the substance of the issue head-on rather than stay silent and let Democrats own the narrative about abortion.
Republicans, though, have mostly focused on the impropriety of someone releasing the draft court opinion to the press prior to the official decision — which justices are set to hand down in a case on Mississippi’s ban on abortion after 15 weeks — and the subsequent protests outside justices’ homes. Senate Minority Leader Mitch McConnell, R-Ky., has claimed that Democrats want mobs to intimidate the courts. (Democrats from the White House on down have defended the protests as peaceful exercises in free speech and have urged that they to remain so.)
But the GOP is miscalculating by yielding the floor on the topic of abortion itself to the Democrats. For one thing, it makes it seem as if they’re uncomfortable with their own policies on the issue. For another, it prevents them from scoring political points against Democrats whose positions go beyond Roe — and the abortion line many Americans want in place.
Senate Majority Leader Chuck Schumer, D-N.Y., thinks he can press his advantage just by raising questions about the GOP silence. “Republicans are spending all their focus on the leak because they don’t want to focus on Roe v. Wade,” he charged.
“They spent a decade — two decades trying to repeal Roe, and now, they won’t own up to it,” Schumer said. “They’re like the dog that caught the bus. … They know they’re on the wrong side of history.”
The Republican platform has indeed been calling for the overturning of Roe since 1976. But while a recent Fox News poll found 63 percent of Americans are opposed to overturning Roe, it’s not so clear that Americans are actually in line with Democrats on abortion as a whole.
For all the public declarations of support for Roe, polls show public confusion about what Roe does — and some suggest that support drops if people have more clarity. One poll commissioned by the conservative America First Policy Institute after the leak found that a plurality of 41 percent erroneously believed the Supreme Court’s decision would automatically outlaw abortion, while another 36 percent said they were not sure what it would do. Those are important points of confusion for Republicans to clear up.
The same survey determined that 65 percent said they wanted abortion policy set by the people and their representatives rather than by judges. That, it turns out, is exactly how Justice Samuel Alito described his ruling in the draft opinion: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
While public opinion on abortion is muddled and complicated, there’s support for policies that are more restrictive than what the reigning Supreme Court precedents allow. Popular backing for legal abortion is highest early in pregnancy and drops further each trimester. The same Fox News poll showed 54 percent would support a law in their states “banning abortion after 15 weeks of pregnancy.” That’s precisely what the Mississippi law being contested does — and Democrats are against it.
Roe wouldn’t have allowed such a ban prior to the third trimester. While the Supreme Court later expanded states’ powers to regulate later-term abortions in 1992’s Planned Parenthood v. Casey, it still allows few limits prior to fetal viability, calculated to be around 26 weeks for most pregnancies by the American College of Obstetricians and Gynecologists.
The federal bill nearly all Senate Democrats voted for Wednesday went even further than the abortion rights spelled out in Roe and Casey, nullifying many existing state-level abortion restrictions that the Supreme Court has deemed compatible with the standards set by the two cases. Health exceptions for pregnant women were defined broadly enough to allow abortions later in pregnancy that many state laws would not, and many readers of political tea leaves expected it to be used to strike down parental notification laws for minors. The text explicitly instructed courts to interpret its provisions liberally.
Even polling that is more favorable to abortion rights than the surveys by conservative entitites finds support tends to waver when broken down by circumstances as well as the stage of fetal development. A recent ABC News/Washington Post poll, in which 57 percent of those surveyed opposed a 15-week abortion ban, found that just 48 percent of respondents said abortion should be permitted when a woman wants to have the procedure because she can’t afford to have a child. Nearly as many — 45 percent — said it should be illegal in that circumstance. Decades of Gallup’s abortion polling have shown pluralities to majorities saying the procedure should only be legal under certain circumstances.
The point isn’t that only Democrats support abortion policies that go beyond public opinion. Republicans often do, too. What Republicans can’t do is cede the messy debate over abortion policy to Democrats while hiding behind process. Doing so ignores the nuances of public opinion that favor the GOP side of the argument and disrespects a key part of the case against Roe: that these policies should be set by elected leaders who are accountable to their constituents.