With Roe v. Wade on the way out, how will America’s politicians readjust?

Comment writer Matteo Cardarelli on how the Supreme Court’s leaked draft overturning Roe v. Wade reshapes America’s politicking. 

Monday May 2 can be divided into two parts; before and after 9:15 PM ET. Rarely is there a moment that so clearly demarcates a new era, an exact second that everyone can point to and say ‘that’s when everything changed.’ The leaked draft of Justice Samuel Alito’s majority opinion overturning Roe v. Wade has accomplished exactly that. In the blink of an eye on a sleepy Monday night in Washington, five decades of established law were overturned. Such an abrupt and unexpected shift in the already vitriolic battle over abortion rights means that twenty-three states could de facto ban abortion in some places overnight. Where hoses and buckets were badly needed, one hundred oil drums have just been poured onto one of America’s most incandescent wildfires.

With startling speed, crowds gathered at the steps of the Supreme Court in Washington, both supporting and protesting the Court’s draft decision. Chief Justice Roberts was forced into confirming the document’s authenticity, citing a ‘betrayal’ of the institution’s trust. To many Americans, there has indeed been a betrayal of trust, but perhaps not in the way that Roberts envisions. Indeed, an ABC poll confirms what many believed: abortion rights are popular amongst Americans, with fifty-four percent supporting legalised abortions and only twenty-eight saying they support overturning Roe. 

The decision is not official, still in draft form, yet many Americans are looking for a knight in shining armor to save the day. A week on from Monday, and that fairy-tale hero? Nowhere to be found. It could have been, should have been, the Democrats. But in the most obvious show of their political impotence, the party has failed to remain united on the issue.

Democrats could avoid the risk of the Supreme Court decision becoming law by codifying Roe. But this would require votes in the Senate that simply aren’t there. First, to remove the filibuster – requiring sixty votes – even the fifty democrats in the chamber are far from safe votes. Joe Manchin (Democrat, West Virginia) has ruled out overriding the filibuster and Kirsten Cinema (Democrat, Arizona) has been flaky in the past. Susan Collins (Republican, Maine) and Lisa Murkowksi (Republican, Alaska), from the other side of the aisle, have long positioned themselves as advocates of abortion rights. Yet it is unlikely that they would vote against their Republican colleagues and the party line. 

In fact we’ve been here before. When Congress attempted to codify Roe last year, it fell pitifully short. The Women’s Health Protection Act, as it was called, passed the House before stumbling in the Senate. Manchin voted against the bill (of course), and Murkowski and Collins proposed their own versions whose protections fall short of the standard set by the previous bill. 

Nonetheless, it is the hopelessness that Senior Democrats have exuded that is the most frustrating thing about the last week. Where Joe Biden should be raising heaven and earth to get his party in line (especially in light of his dismal poll numbers), he has meekly acquiesced to the political impossibility of his task. Chuck Schumer, Senate Majority Leader, (Democrat, New York) announced that a vote on codification of Roe is forthcoming, yet it seems that this will be little more than a political exercise, a piece of pantomime. Indeed, the vote was lost 49-51 as Manchin voted against the proposal.

What should be frustrating for liberals is the potential of the situation. In a year when Democrats are expected to perform poorly at the midterms, this is a chance for their party to make November about something other than the largely-unpopular Biden presidency. Democrats would do well to use the outrage to their advantage. But this must be accompanied by more than pithy words and gestures. Senator Elizabeth Warren (Democrat, Massachusetts) noted that it will be “the most vulnerable women in the country,” who bear the brunt of Alito’s opinion. “Wealthy women will still get safe, legal abortions by flying to another state or even traveling to another country,” she added. It is women in lower-income minority groups who disproportionately undergo abortion. The left’s paralysis is a turn-off for the voters whose support it takes for granted.

Even Republicans – for whom the outpouring of public anger is far more dangerous given the GOP’s anti-abortion messaging – have navigated the situation with more dexterity. Senator Josh Hawley (Republican, Missouri) provocatively called the leaked draft “a heck of an opinion. Voluminously researched, tightly argued, and morally powerful.” But he remains an outlier, as most senior GOP members have avoided drawing fire on the opinion itself. Most have instead chosen to focus on the leak. Senator Ted Cruz (Republican, Texas) has pushed for a swift investigation and “real jail time” for the leaker while pushing the baseless partisan claim that “some angry left wing law clerk” is to blame for the breach in confidentiality; Senator McConnell prevaricated on the draft itself, saying, “You need, it seems to me, a lecture to concentrate on what the news is today. Not a leaked draft, but the fact that the draft was leaked.” At a Tuesday private lunch for Congressional Republicans, McConnell even purportedly told subordinates to steer clear of discussing the opinion’s content if it made them uncomfortable. 

The irony of the situation was not lost on Democrats, particularly Schumer who noted that “Republicans sought this outcome for years. You’d think they’d be celebrating. A few are, the real hard-right fanatics. But not Leader McConnell.” Yet Republicans sense that there is nothing to gain from an all-out spat over Roe, which could distract from issues such as rising inflation, sky-high gas prices and immigration where they have successfully outcompeted Democrats. 

Perhaps McConnell even realises the opportunity that the Court has given Republicans; watching the Democratic Party literally implode, inside out: because make no mistake, while an organised response by Biden and his party in Congress would earn them vital support ahead of the midterms, passivity would be equally disastrous. And if the course steered by liberals does not change in the coming weeks, then colliding with the iceberg represented by a Republican landslide in November may be the least of their worries. If Democrats are unable to muster a defense over abortion rights, then the party’s reputation, already damaged, would sustain an irrevocable blow.