Anti-abortion activists celebrated Thursday after the Supreme Court declined to halt a Texas law that effectively prohibits almost all pregnancy terminations in the state.
But Democrats believe it is Republicans who could prove to be on the losing side politically, now that abortion has been forced back onto center stage.
The Texas law enables private individuals to sue almost anyone who helps a woman get an abortion after a fetal heartbeat can be detected. A heartbeat can usually be detected around six weeks after conception — before many women even realize they are pregnant.
Abortion providers in Texas have suggested that the law would have the effect of banning at least 80 percent of the terminations that would otherwise take place in the state.
For religious conservatives, it is a sizable step toward undoing the 1973 Roe v. Wade decision that enshrined the right to abortion nationwide.
But the Texas law is also disconnected from public sentiment across the country.
Even though there are some elements of the abortion issue on which the American public are almost evenly divided, Roe is not one of them. Most polls show something in the region of 60 percent of the public in favor of maintaining the 1973 landmark ruling.
“This ultimately could severely damage the Republicans,” Democratic strategist Mark Longabaugh told this column. “The Republicans may have reshaped the court, but they have reshaped it for their political defeat. It is completely out of step with the country.”
The Supreme Court’s refusal to intervene was announced very late on Wednesday night, and reverberated through the political system Thursday.
The court’s decision came in a 5-4 decision, with Chief Justice John Roberts — usually a conservative voice, nominated by former President George W. Bush — joining the three liberal justices in dissent.
The most scathing dissent came from Justice Sonia SotomayorSonia SotomayorThe Hill's Morning Report - Presented by Facebook - Biden talks up bright side beneath omicron's cloud The Memo: Trump's justices look set to restrict abortion Five revealing quotes from Supreme Court abortion case MORE, who contended that her conservative colleagues had decided to “bury their heads in the sand” rather than halt a “flagrantly unconstitutional” law.
Some conservative Republicans exulted in the decision. Sen. Tom CottonTom Bryant CottonConservatives target Biden pick for New York district court GOP anger with Fauci rises Cotton swipes at Fauci: 'These bureaucrats think that they are the science' MORE (R-Ark.), who’s considered a potential 2024 presidential contender, tweeted, “The Supreme Court just let Texas’s pro-life law go into effect, saving countless innocent lives.”
Cotton’s voice was comparatively lonely among mainstream Republicans, however. In terms of raw political calculation, the GOP might prefer to keep the spotlight on Afghanistan, where a chaotic American withdrawal has provoked widespread criticism of the Biden administration. One way or another, many Republicans appeared not to have much to say about the dramatic abortion ruling.
Liz Mair, a GOP consultant and former online communications director for the Republican National Committee, cautioned, “We don’t really have enough information to know how this plays out.”
Mair acknowledged the polling numbers on Roe, but also noted that the American public splits almost evenly when people are asked if they consider themselves pro-choice or pro-life.
The split reflected the “moral magnitude” of the debate, she said — and may limit the political fallout from the Supreme Court ruling.
The conservative National Review magazine, in an editorial, actually played down the implications for Roe v. Wade, focusing instead on what its editors saw as the tactical cunning of the Texas law.
The Texas measure basically found a loophole against quick court challenge because it puts the onus on citizens to take action against abortions, rather than giving such a duty to state officials. This facet made it harder for opponents to figure out whom to sue at this stage.
This was the basis on which the five most conservative justices on the court let the law stand for now, though their view clearly bothered Roberts, who mused in his opinion about whether “a state can avoid responsibility for its laws in such a manner.”
Most legal experts expect the law’s constitutionality will only be tested once someone sues an abortion provider.
Meanwhile, the Supreme Court will hear a crucial case in the coming months centered on a Mississippi law that would outlaw most abortions after 15 weeks. All sides in the abortion debate believe that ruling could undo Roe.
In terms of the political impact, it is telling not just that Republican reaction has been relatively muted but that the Democratic outrage is so loud and clear.
Democrats clearly believe the move amounts to conservative overreach that could blow up in the GOP’s face.
President BidenJoe BidenManchin to vote to nix Biden's vaccine mandate for larger businesses Congress averts shutdown after vaccine mandate fight Senate cuts deal to clear government funding bill MORE issued a statement calling the Supreme Court ruling “an unprecedented assault on a woman’s constitutional rights.”
“Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women,” Biden added, noting that the law does not provide exceptions even in cases of rape or incest.
Vice President Harris issued a separate statement, accusing the Supreme Court of having “effectively allowed a bounty law to go into effect in Texas.”
Speaker Nancy PelosiNancy PelosiCongress averts shutdown after vaccine mandate fight On The Money — Congress races to keep the lights on House sets up Senate shutdown showdown MORE (D-Calif.) promised she would seek to advance legislation that would codify protections for abortion rights — though it seems next-to-impossible that such a measure would advance in the Senate even if it cleared the House.
Public opinion on abortion has not shifted definitively toward the liberal side in the way it has on other hot-button issues such as same-sex marriage, or as it did a generation ago on interracial marriage.
Gallup polling shows the proportions of the population considering themselves “pro-choice” or “pro-life” have shifted only by modest amounts, and apparently at random, over decades.
Gallup’s most recent data, from this year, shows the abortion rights side with a marginal advantage, 49 percent to 47 percent. But the anti-abortion position held an equally tenuous plurality as recently as 2019, by 49 percent to 46 percent.
Crucially, however, the picture on Roe v. Wade is starkly different. The appetite among the American public for banishing that ruling — and plunging into a newly vigorous debate over abortion — is very limited.
In Gallup polling from May, just 32 percent of respondents wanted Roe overturned, while 58 percent did not. Those numbers are basically the same as a poll on the same question from the same organization 32 years ago, in 1989. There have only been minor fluctuations along the way.
It is those kinds of figures that give Democrats political comfort even as they are outraged about the substance of the Texas law.
“This law is so extreme,” said Democratic strategist Julie Roginsky. “Even many people who are pro-life think it is insane to deny somebody an abortion even in cases of rape and incest. That is something the vast majority of Americans don’t support.”
Roginsky added that the ruling was likely to energize Democratic voters more than their Republican counterparts — even if their energy was rooted in horror.
“Democrats who never quite believed that Roe v. Wade would be reversed now understand — very belatedly — that it has been very effectively abolished,” she said.
The Memo is a reported column by Niall Stanage.