What Would Striking Down Roe v. Wade Mean For The Midterms?
Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.
sarah (Sarah Frostenson, politics editor): It’s possible that Roe v. Wade, the landmark 1973 decision that established the constitutional right to abortion, is about to be overturned.
Late on Monday, Politico published a draft Supreme Court opinion that indicates a majority of the court’s conservative justices are ready to overturn Roe. There’s still a lot we don’t know at this point, including whether this opinion has changed — the draft Politico obtained is dated Feb. 10, and Supreme Court opinions often involve multiple drafts and revisions — or who leaked it. (Chief Justice John Roberts said in a statement Tuesday that the draft was authentic, but that it “does not represent a decision by the Court or the final position of any member.”)
But regardless of whether this opinion is final, the court deciding to overturn Roe this term has always been a distinct possibility. It’s something, too, that has far-ranging implications for both abortion access in the U.S. and the upcoming midterm elections, so let’s discuss in three parts the politics of Roe being overturned.
- First, what kind of political fights can we expect to see if Roe were overturned? Abortion access in the U.S. would be dramatically curtailed, but changes to abortion access would hardly be uniform. What kinds of fights should we expect to see play out in the states (or are already playing out)? In Congress?
- Second, abortion has long motivated Republicans more than Democrats, but there are signs that calculus is changing. Could abortion — especially if the court overturns Roe — shake up the upcoming midterm elections?
- Finally, let’s take a step back and talk more broadly about where Americans stand on abortion. We know that Americans have a complicated relationship to abortion and support a variety of restrictions, but at the same time, most Americans do not want Roe overturned. This means that if the court were to overturn Roe, they would be out of step with public opinion. Isn’t this a risky position for the court to be in?
Let’s start with that first question. What political fights can we expect to see if Roe were overturned?
ameliatd (Amelia Thomson-DeVeaux, senior writer): Well, to state the obvious, abortion is going to become illegal in much of the country almost immediately. According to the Guttmacher Institute, 22 states are certain to quickly ban abortion, and a few more could follow.
In fact, we’ve already seen a slew of laws introduced since the start of this year that ban abortion at various stages of pregnancy — ranging from a 15-week ban in states like Florida and Arizona, to a near-total ban in Oklahoma.
This push has mostly been concentrated in red states where Republicans are in power, but one development that’s particularly notable is legislators and governors are not just trying to ban abortion in their states — they’re also trying to threaten blue-state abortion providers who accept red-state patients. Take Missouri. Lawmakers there introduced a proposal earlier this year that’s aimed at making it legal to sue anyone who aids a Missouri resident in obtaining an abortion, regardless of where they live. That hasn’t become law yet, but I imagine we’ll see a lot more of those types of measures if Roe is gone — especially if more women are turning to the internet to get abortion pills. Anti-abortion legislators will try to restrict their ability to do that.
Of course, on the other side of the aisle, several blue states where Democrats are in power are expanding abortion access, making it easier and cheaper to get an abortion. We’re already seeing some of those efforts.
The bottom line is that if Roe were overturned, it would be incredibly chaotic — which is saying something, because it’s already tumultuous — and would likely involve more Texas-style laws where citizens file vigilante lawsuits.
nrakich (Nathaniel Rakich, senior elections analyst): Yeah, this is example No. 48,329 of why state-level politics are important — maybe more important than federal politics.
geoffrey.skelley (Geoffrey Skelley, elections analyst): Republicans are also in a better position to push laws that ban abortions — if they haven’t already.
Currently, Republicans have full control of the government in 22 states, while Democrats only have “trifectas” in 14 states. The other 13 states have divided governments (including Alaska), but some of those states are pretty Republican and could fall under full GOP control in 2022 or 2023, such as Kansas, Kentucky and Louisiana.
amelia: Lawmakers are also already thinking ahead to a post-Roe future. Because the fact is, a neighboring state offering abortion services is a big problem for anti-abortion lawmakers. For instance, there is currently no way to stop Missouri residents from going over the border to get an abortion in Illinois, which significantly undermines Missouri Republicans’ efforts if their goal is to end abortion.
sarah: But if Roe were overturned at the federal level, could we expect a federal-level response? Earlier this year, for instance, Democrats in Congress moved to codify Roe into federal law, protecting the right to abortion nationwide. It passed the House, but it failed to get enough support in the Senate, largely because Sen. Joe Manchin joined Republicans in blocking the bill.
Presumably, though, this is a fight we’re going to see Democrats take up again? President Biden, for instance, said in a written statement on Tuesday, “[W]e will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
ameliatd: I don’t know, Sarah. Abortion is just really hard to deal with at the national level. After all, one reason this has largely been a state-level battle since the 1980s is because the anti-abortion movement failed to pass a federal constitutional amendment banning abortion in the decade after Roe.
This is not to say that Republicans won’t try to ban abortion if they get control of Congress and the White House — I’m sure they will — but even that will be difficult unless they get rid of the filibuster.
alex (Alex Samuels, politics reporter): Exactly. Scrapping the filibuster will definitely become a pressing topic once again. While Congress does technically have the ability to codify the legal principles outlined in Roe, doing so would require Democrats in the Senate to get rid of the 60-vote threshold needed to pass legislation, given their one-vote majority in the chamber currently. And as we’ve written time and time again, certain senators have long been opposed to doing that.
But even if nuking the filibuster were realistically on the table and Democrats could codify Roe into law, there’s really nothing precluding Republicans from then reversing that if they take back control of the House and Senate later this year, right? As we already know, the midterm environment is likely to favor Republicans this year, too.
nrakich: As Alex said, the continued existence of the filibuster means that it’s impossible to imagine federal legislation on abortion passing anytime soon.
But even if Democrats were to abolish the filibuster (unlikely), they might still not have the votes to codify abortion rights into law. As you mentioned, Sarah, the Senate voted on a bill to do just that as recently as February, and it failed. Manchin voted against it, but so did pro-choice Republican Sens. Susan Collins and Lisa Murkowski. (However, Collins and Murkowski have introduced similar legislation that would not go as far as Democrats’, suggesting they are at least open to it.)
geoffrey.skelley: In theory, Democrats may have 49 votes (the party’s caucus minus Manchin), but at least for legislation written by Democrats, I doubt either Collins or Murkowski would want to provide the 50th vote to set up a tie-breaking vote by Vice President Kamala Harris. Murkowski is up for reelection and has already made plenty of moves that have ticked off the right, and like many politicians, Collins seems inclined to avoid being put in a situation where her vote is a difference maker.
ameliatd: Well, and there’s always the possibility that the Supreme Court would overrule a federal law that protects abortion rights. Dare I say it, I ultimately think this isn’t going to be something that Democratic politicians feel a lot of pressure around until abortion rights are actually gone in half the country and people start to see what that means.
alex: Totally agree, Amelia. But I also wonder if the potential midterm repercussions for Democrats (or fears around that) will motivate a few members to change their mind? For instance, maybe Collins changes her views on nuking the filibuster now that Justice Brett Kavanaugh appears in favor of axing Roe?
nrakich: I don’t know. The only scenario where I could see Democrats passing a pro-abortion bill is if, in 2023, they somehow hold the House and pick up seats in the Senate. If they win, say, 52 seats, the votes could be there to abolish the filibuster. But Democrats holding the House and picking up seats in the Senate is a pretty unlikely scenario.
On the flip side, I think the soonest Republicans could enact a national abortion ban would be 2025: They’d have to flip not only the Senate and House but also the presidency.
But that scenario maybe seems more plausible given how favorable the Senate map is to Republicans, especially in 2024.
Even then, though, they’d probably have to abolish the filibuster, which I think would be unlikely to happen. I don’t think Collins or Murkowski would vote to abolish the filibuster in a GOP-controlled Senate.
geoffrey.skelley: I don’t know, Nathaniel. If the GOP ends up with a large Senate majority after the 2024 election, they might be more inclined to get rid of the filibuster than a narrow Democratic majority currently is — especially if Democrats are blocking some major Republican goals in 2025.
In a world where Republicans have, like, 57-58 seats — quite feasible after 2024 — there may be a push to do something.
ameliatd: But by the time we get to 2024, that’ll be two years without abortion access in half the country — which could have changed the politics quite a bit — so I’m not sure what this will mean at the federal level.
I do think, though, that in the immediate future we will see more state-level Democratic politicians leaning into abortion as an issue, since they have some power to change the status quo. And blue states have lagged a lot on expanding access to abortion; they’ve caught up to red states a bit in the past few years, but there’s still room for them to do more.
sarah: Americans have a complicated relationship to abortion in that they support a number of different restrictions, some of which are out of step with Roe. But at the same time, most Americans do not want Roe overturned.
This poll from NBC News was conducted earlier this year, but it found that voters, including independents, not only supported Roe but also weren’t in favor of candidates who wanted to overturn Roe.
If the court were to overturn Roe this term, then doesn’t this have the potential to shake up the midterms in ways that we can’t really anticipate now?
ameliatd: There’s a myth that Americans are personally conflicted about abortion. But that’s not really true. The vast majority of Americans think abortion should be legal in at least some circumstances — we’re talking 85-90 percent. So completely banning abortion would be highly unpopular.
Public opinion on abortion sometimes looks muddy because people don’t like talking and thinking about abortion, and because they especially don’t like to deal with it as a political issue. But I suspect that when confronted with the reality of a post-Roe country, that could change.
Will it happen in time for the midterms, though? I’m not sure.
sarah: That’s a good point, Amelia. This ABC News/Washington Post poll was conducted before Alito’s draft opinion was leaked, but I think it’s striking how unaware many people were when it came to the abortion landscape in their state. It found that in the 22 states that have passed abortion restrictions since 2020, only 30 percent of residents were aware of the restrictions. Forty-four percent said they weren’t aware, and 26 percent said they were unsure.
alex: I’m torn on the effects this will have on the midterms. On the one hand, some polling suggests that protecting abortion rights is a priority for Democrats in particular.
According to a December poll from the Associated Press/NORC Center for Public Affairs Research, 13 percent of Democrats named abortion or reproductive rights as one of the issues they wanted Congress to address in 2022. And that’s a marked increase from two other times the poll asked the question: Less than 1 percent of Democrats called it a priority in 2021, and only 3 percent did in 2020.
That said, it’s not immediately clear to me whether gutting Roe would hurt Republicans in the midterms. Gallup found in March, for instance, that Americans do not consider abortion to be a critical problem facing the nation.
geoffrey.skelley: What’s tricky about this is that the people who are most in favor of abortion rights are college-educated, and while those people have backed Democrats in recent elections, they are far from a majority of the electorate. For abortion to make a big difference in the election, you’d need to see other groups of voters shifting back toward Democrats on this issue.
And I’m skeptical abortion is going to supplant the economy and inflation as the top issues Americans are worried about — not when Biden’s approval rating will likely still be in the low 40s and there’s little sign that inflation is going to fully stabilize before the election.
nrakich: Yeah, Geoffrey, I’m not sure it will change many people’s actual votes; if you support abortion rights, you’re probably already voting Democratic. It could, however, increase Democratic enthusiasm to turn out in a year when Republicans might otherwise have an enthusiasm advantage.
According to a CNN/SSRS poll from January, 35 percent of Americans said they would be “angry” if the Supreme Court overturned Roe. And that group was disproportionately Democratic: 51 percent of Democrats said they would be angry (significantly more than the 29 percent of Republicans who said they would be “happy”).
And, to put it simply, angry people vote.
ameliatd: This is a topic that’s hard to poll because we genuinely don’t know what will happen. Many Americans have never lived in a country where abortion wasn’t legal. And the landscape of abortion access will look very different in 2022 than it did in 1972, because abortion pills provide a safe way to secretly terminate a pregnancy that wasn’t available back then.
alex: This is somewhat speculative, but it is possible that overturning Roe could energize younger progressives and women. I know both groups already lean Democratic, but maybe Democrats could use this to motivate groups that have soured somewhat on Biden since he became president?
geoffrey.skelley: That’s a good point, Alex. This certainly could be a motivating issue for the Democratic base and could help them limit their losses in the midterm. The problem for Democrats, however, is that all the evidence still points to very high GOP turnout for a midterm election. I think swing voters are unlikely to be heavily swayed by abortion as an issue, too; they’re probably going to be unhappy with the current economic situation under a Democratic president, so that will push many to vote Republican.
I just don’t see abortion changing those basic midterm calculations.
nrakich: Maybe, though, this has a bigger impact on state-level elections this year, like gubernatorial races, for the reasons we mentioned earlier. Simply put, those offices are actually in a position to do something about this.
sarah: We do know from the 2018 midterms, however, that Kavanaugh’s confirmation to the Supreme Court did likely affect the outcome, especially by helping Republicans in the Senate, so if the court were to overturn Roe, it’s certainly possible that this would have an effect, too. As Amelia said earlier, it’s just really hard to know at this point because we still don’t know how the court will ultimately rule.
We’ve talked about this a little already, but to conclude, let’s take a step back and more broadly talk about where Americans stand on abortion. If the court were to overturn Roe, this would be really out of step with public opinion. What are the potential consequences of this, especially as it pertains to the legitimacy of the court?
ameliatd: In the past, the Supreme Court has been responsive to public opinion. In the 1970s, for instance, they struck down the death penalty, only to allow states to use it again after a backlash. But we’re in uncharted territory with this extremely conservative court.
The court seems to know this, too. For instance, in Alito’s draft opinion, he said that the justices shouldn’t let external considerations like public opinion or political backlash sway them. So it’s clear that they’re aware this would not be a universally welcomed move.
alex: The court’s favorability has already slipped, too. According to a January survey by the Pew Research Center, just a little over half of U.S. adults (54 percent) had a favorite opinion of the high court, compared with 44 percent who viewed it unfavorably.
On its face, those numbers might not look too bad, but the share of adults with a favorable view of the court has declined significantly since August 2019. Back then, 69 percent of adults had a favorable view of the court, and only 30 percent had an unfavorable view.
ameliatd: The justices don’t really have a reason to care about their favorability numbers, though. There’s no way for voters to directly hold the justices accountable for their actions. Congress could add more justices to the court, but that’s not going to happen anytime soon. So they don’t have much of an incentive to pull their punches right now — especially considering that overturning Roe has been a primary goal of the conservative legal movement for decades.
In many ways, Kavanaugh, Neil Gorsuch and Amy Coney Barrett were put on the court to do this very thing.
alex: Right, Amelia. On the one hand, we shouldn’t be surprised that many of the conservative justices want to overturn Roe, since this was a big criteria former President Donald Trump used to select nominees to the high court.
nrakich: Yeah, I’ve been wrestling with the weird contradiction that this (potential) decision is both jaw-dropping and completely unsurprising.
ameliatd: Roberts is clearly upset about the leak — he called it a “betrayal” and apparently has asked the marshal of the court to investigate how it happened — but this just seems like a confirmation of what we already knew: This is a very conservative court that is increasingly out of step with mainstream public opinion, and there’s no real mechanism to change that.