Backlash over Supreme Court's draft abortion ruling offers opportunity for Democrats

An angry Chuck Schumer walked down the front steps of the US Capitol on Tuesday afternoon to bemoan a “dark and disturbing day” after it emerged the Supreme Court might overturn the Roe vs Wade precedent protecting abortion rights across the country.

But flanked by fellow Democratic lawmakers, the Senate majority leader suggested there could also be a political opening for his party ahead of the 2022 midterm elections amid the outrage — and Republicans would pay a price.

“The blame for this decision falls squarely on Senate Republicans, who spent years pushing extremist judges and justices while claiming this day would never come. But come it has,” Schumer said. “They know they’re on the wrong side of history and on the wrong side of the American people.”

If the Supreme Court decides to overturn the 1973 Roe vs Wade precedent in its entirety, as a leaked document on Monday night suggested it will, the decision is likely to lead to immediate restrictions on abortions across many Republican states, marking a huge defeat for the pro-choice movement and its champions in Congress.

But Democrats and activists said it could also provide a rallying cause for liberal and independent voters ahead of November’s midterm elections, where the party is expected to sustain heavy defeats because of voter worries about inflation and low approval rating of US president Joe Biden’s performance.

“Now that the Supreme Court’s pending decision to overturn Roe altogether has leaked, we believe voters are galvanised to take action,” said Laphonza Butler, president of Emily’s List, a political action committee that supports pro-choice candidates. “Now that the Supreme Court’s pending decision to overturn Roe altogether has leaked, we believe voters are galvanised to take action.”

Already on Tuesday, protests were planned in cities across the US in response to the leaked opinion. In Washington, hundreds of pro-choice campaigners stood outside the Supreme Court, calling on Biden to expand the court by installing more liberal justices. They chanted “four more seats!”, an echo of “four more years”, the traditional rallying cry of a president seeking re-election.

Elise Iannone, an attorney who was among the protesters, told the Financial Times: “Hopefully this will mean more people get out and vote come November. It shows that elections have consequences.”

MoveOn, a progressive campaign group, on Tuesday said it was on course to raise more than double the amount it normally expects from an email campaign.

“The reaction we are seeing today is just the beginning of the anger they have unleashed on the left,” said Rahna Epting, MoveOn’s executive director. “You cannot take people’s rights away from them and think they are going to sleep on it.”

The confidence that Republicans will suffer a backlash if the Supreme Court and its conservative majority fully overturn Roe vs Wade is mainly based on public polling showing clear opposition to such a move.

According to a Washington Post-ABC poll conducted last month, 54 per cent of Americans believe the landmark decision should be upheld, while just 28 per cent think it should be overturned. A majority also opposes restricting abortions to the first 15 weeks of pregnancy, the main provision of the Mississippi law at the heart of the Supreme Court case.

Top Democrats on Tuesday argued that if the Supreme Court guts Roe vs Wade, it could also potentially imperil the rights to contraception and same-sex marriage, moves that would push Republicans even further out of the mainstream.

“If the right to privacy is weakened, every person could face a future in which the government can potentially interfere in the personal decisions you make about your life,” vice-president Kamala Harris wrote on Twitter.

But whether the draft opinion will shift the political dynamic in favour of Democrats is unclear. The sharp increase in abortion restrictions at a state level across the country, including in Texas, has failed to dent Republican popularity nationally.

The GOP holds a 4.2 percentage point edge in the generic congressional ballot over Democrats, according to the RealClearPolitics.com polling average, compared with a lead for Democrats throughout most of 2021.

In the governor’s race in Virginia last year, Democratic nominee Terry McAuliffe tried to leverage the pro-life views of his Republican rival Glenn Youngkin against him, but lost the election.

Another problem for Democrats is that they are largely powerless to halt or limit the effects of any ruling overturning Roe vs Wade given their exceedingly slim majorities in Congress. While there have been calls by some Democrats to expand the Supreme Court or codify abortion protections into law, such moves would require a supermajority in the Senate that Democrats lack, or a change to Senate rules they are unlikely to secure.

“There are no easy answers or quick fixes. No obvious response or place to channel one’s anger and sadness at this travesty,” Dan Pfeiffer, former president Barack Obama’s communications director wrote in his newsletter. He added that the focus of Democratic activism should be on “down-ballot races” such as state governors and legislative contests in states where abortion was being curtailed.

But amid the political maelstrom unleashed by the leaked decision, some Republicans did not appear too comfortable. Susan Collins, Republican senator from Maine, suggested she had been misled by Neil Gorsuch and Brett Kavanaugh, the conservative justices, when they told her before their confirmation that Roe vs Wade was settled law.

“[The draft] would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said.

Lisa Murkowski, Republican senator from Alaska, added: “My confidence in the court has been rocked.”

Even Mitch McConnell, the Republican leader in the Senate, who shepherded the nominations of the three Trump-appointed justices through confirmation to the court, would not weigh in on the merits of the draft ruling, saying the focus should instead be on how it leaked.

Schumer said: “Their spinmasters are telling them to avoid the subject, and they did.”