Democrats reacted much the way you’d expect after Politico published Justice Samuel Alito’s draft Supreme Court opinion striking down Roe v. Wade.
Some expressed righteous outrage: Nancy Pelosi called the decision an “abomination,” while Elizabeth Warren practically shook with fury as she told reporters she was “angry, upset, and determined” to save abortion rights. Others turned to political symbolism: Chuck Schumer promised that the Senate would vote on a bill codifying Roe’s protections nationally, which is almost certain to fail, but will force lawmakers to “show which side they’re on,” as the majority leader put it.
Above all, they urged Democrats to get out and vote in the coming midterms. President Joe Biden said protecting women’s reproductive rights would “fall on voters to elect pro-choice officials this November” in a White House statement. Rep. Sean Patrick Maloney, head of the Democratic Congressional Campaign Committee, was a bit less artful, tweeting, “it’s November, stupid.”
What top Democrats did not do—as far as I could tell—was clearly acknowledge just how long the road is likely to be for pro-choice Americans who want to restore what they will have lost, even if they do show out in force for the next several elections. It took conservatives and the religious right nearly 50 years to undo the constitutional right to an abortion. Thanks to the institutional disadvantages working against Democrats, clawing those rights back could very easily become its own generational challenge, long on defense and short on instant gratification.
Many of the reasons—gerrymandered states, the rural skew of the Senate, and the relatively young age of the conservative Supreme Court justices—are familiar by now to politics junkies. But it’s worth examining the obstacles one by one, for politicians to make them clear to voters so they can truly understand the road ahead.
In the very short term, Democrats lack the votes to enact a federal statute protecting abortion rights. The party has 50 seats in the Senate, and one of them belongs to Joe Manchin, who identifies as pro-life and voted with Republicans to block such a bill in February. He and fellow centrist Kyrsten Sinema have also said they won’t lift the filibuster in order to pass a bill.* The most Democrats can muster right now is a show vote that might one day provide grist for attack ads against battleground-state Republicans, such as Maine’s Susan Collins.
Even if there were enough votes to write Roe into federal law, there’s a strong chance the Supreme Court would strike it down. The bill Democrats plan to introduce, the Women’s Health Protection Act, would regulate abortion based on Congress’ power to oversee interstate commerce. But there’s a long-running debate about whether that would be a legally valid exercise of lawmakers’ authority, and the justices who appear ready to unravel Roe could pretty easily reject the law simply by ruling that, no, abortion does not count as interstate commerce. (On the bright side, that might also block Republicans from passing a national abortion ban, since such a law would likely have to be rooted in the commerce clause as well.)
In order to have the best possible shot of restoring abortion rights nationally, Democrats will likely need to win back control of the Supreme Court—either to reestablish a constitutional right to the procedure or bless a federal law codifying Roe. That task will be very, very difficult in the near future, given the relatively young ages of the conservative justices—the oldest, Clarence Thomas, is still just 73—and their 6–3 majority. The most surefire way to do it would be for Democrats to either pack the court or otherwise reform it to reshuffle the high bench’s ideological balance.
But such a move would require solid majorities in Congress willing to play hardball for control of the government’s institutions. Because of the structural disadvantage Democrats currently face in the Senate due to their unpopularity among overrepresented rural voters, the party probably isn’t going to win that power anytime soon.
A recent post at Slow Boring by Simon Bazelon illustrated just how dire the Democrats’ Senate math is at the moment. The Yale student and Democratic number cruncher calculated that even if Democrats won 50 percent of the national vote in this year’s midterms and 52 percent of the popular vote in 2024’s presidential race, they would likely lose control of the Senate, ending up with 43 or 44 Senate seats.
To put that in perspective, Democrats are currently trailing Republicans on the generic congressional ballot 45.4 to 42.8, according to the FiveThirtyEight polling average; meanwhile, Biden won just over 51 percent of the popular vote in 2020. In other words, even if Democrats do come out and vote like mad and way overperform expectations, it’s highly likely they’ll still end up powerless in the Senate from now into the near future.
It’s possible Bazelon is being overly pessimistic: He assumes that Senate races will closely track the nationwide vote the way they have in more recent elections where ticket splitting declined, but it’s possible that won’t be the case in 2024. Or, who knows, maybe Democrats will stumble on the magic formula to win back rural voters they lost to Trump.
But his calculations give a sense of the difficult terrain ahead. The Senate math is simply not good, and probably won’t be for many years, unless Democrats find a way to change up their coalition.
What about state-level fights to protect abortion rights? In several key cases, the deck is stacked against pro-choice voters thanks to severe partisan gerrymanders.
In Florida and Wisconsin, polling suggests voters are solidly in favor of legal abortion in most cases. In Texas and Georgia, they’re almost evenly split. But all four states, which are home to about 68 million Americans, or 20 percent of the country, have laws in place that will ban or restrict abortion when Roe falls. (In Texas’ case, the statute is already in effect.) Each also appears set to end this redistricting cycle with skewed maps that lock in GOP political power for the next decade.
This is part of what makes Alito’s opinion, and its declaration that “the authority to regulate abortion must be returned to the people and their elected representatives,” so galling. The court now ready to decree that women’s reproductive rights should be decided democratically has also disempowered voters by allowing states to continue gerrymandering, while also gutting the protections of the Voting Rights Act. How convenient.
None of this is meant to suggest pro-choice Democrats should retreat into hopelessness, however. To protect the right to an abortion, they need to vote more urgently than ever.
The best way to prevent Republicans from passing a national abortion ban is to minimize Democratic losses in the House and Senate and to hold on to the White House. There are a number of states where the legislatures and governors’ mansions are truly up for grabs, and abortion will essentially be on the ballot over the coming years. They include places like North Carolina and Michigan, where the legislative maps have been newly un-gerrymandered, as well as battleground states like Pennsylvania and Minnesota. In some states, such as Florida, ballot initiatives could be a way to protect abortion rights when legislators won’t. Every campaign cycle will bring real fights to win.
But those victories will often amount to successful defenses of the status quo. They’re likely to be interspersed with more painful losses—maybe catastrophic ones if Republicans win a trifecta in Washington and go for a national ban. So while it’s understandable that Democrats are currently focused on the short-term politics of the midterms, they must also make it clear to pro-choice voters that they need to prepare for a long march if they want to restore abortion rights. It might not take 40 years. But conservatives are poised to triumph on this issue because they found the discipline to wage almost a half-century of political trench warfare.
Pro-choice Americans can take some inspiration from that, and find the same marathon determination to fight for their beliefs.
Correction, May 8, 2022: Due to a bizarre mental lapse by the author, this piece originally misidentified Kyrsten Sinema as Kyrsten Gillibrand.