WASHINGTON — A Supreme Court ruling to weaken or overturn the landmark Roe v. Wade decision in the middle of next year’s midterm election campaign would immediately elevate abortion rights into a defining issue and most likely reinvigorate efforts to overhaul the court itself.
Even as the justices weigh the case of the Mississippi law barring most abortions after 15 weeks, the political clash is already intensifying, with Democrats warning supporters that the court is poised to reverse access to abortion 50 years after it was recognized as a constitutional right.
“What is fundamentally at stake is that every woman in our country should be able to make her own health care decisions and chart her own destiny and have the full independence to do that,” said Sen. Maggie Hassan, D-N.H., who is seeking reelection in a race with significant implications for control of the Senate.
As the court heard arguments in the Mississippi case on Wednesday, it appeared that the six conservative justices were likely to uphold the state’s law despite the precedent set in 1973 by Roe, which held that states could not bar abortion before fetal viability, now judged to be around 22 to 24 weeks.
Several of the justices suggested that they were willing to go another step and overturn Roe entirely, leaving states free to impose whatever bans or restrictions they choose. The court is likely to release its decision in the case at the end of its term in June or early July, just as campaigning in the midterms is getting into full swing.
While the subject of abortion and the Supreme Court has traditionally been seen as more of an energizing issue for Republican and evangelical voters, Democrats say that situation could be reversed should the court undermine Roe, raising the possibility that abortion could be banned or severely limited in many states.
That outcome, Democrats said, would transform the long fight over abortion rights from theory to reality and give new resonance to their arguments that a Democratic Congress is needed to protect access to the procedure and seat judges who are not hostile to abortion rights.
“There is no question that should the decision be one that would overturn Roe v. Wade, it will certainly motivate our base,” said Sen. Gary Peters of Michigan, the chairman of the Democratic Senatorial Campaign Committee. “Quite frankly, we know that a majority of the people in this country continue to believe it should be the law of the land.”
“It will be an incredibly powerful issue,” Peters said.
Republicans see advantages as well, saying it will validate their decadeslong push to limit if not outlaw abortion and show that they should not back away from their efforts when they are succeeding.
“Today is our day,” Rep. Steve Scalise of Louisiana, the No. 2 House Republican, told abortion opponents outside the Supreme Court on Wednesday. “This is what we’ve been working for.”
Aware that a decision undermining abortion access has political risks for them as well, Republicans say the fight will be just part of their 2022 message as they seek to tie Democrats to inflation, the chaotic withdrawal from Afghanistan and other subjects where they see a greater edge.
“There’s a lot of issues out there,” said Sen. Rick Scott, R-Fla., the chairman of the National Republican Senatorial Committee, suggesting the significance of abortion will vary from state to state. “Everybody’s going to take a position.”
But it was quickly clear that some Republicans would embrace the drive against Roe.
“I’m pro-life. I’m anti-Roe v. Wade,” Sen. John Kennedy, the Louisiana Republican who is seeking a second term next year, said in a fundraising appeal sent hours after the court debate. “There is not much else I can say other than that.”
In addition to the congressional elections, how the justices dispose of the case holds potentially grave implications for the court itself. The stature and credibility of the court were prominent subtexts of Wednesday’s arguments, with Justice Sonia Sotomayor pointedly asking how the court would “survive the stench” of overturning Roe in what many would see as a blatantly political act.
After Senate Republicans in 2016 blocked President Barack Obama from filling a Supreme Court vacancy with almost a year left in his term, progressives began calling for adding seats to the court or setting term limits on the now-lifetime appointments to offset what they saw as an unfair advantage seized by Republicans. Then, when Republicans seated Justice Amy Coney Barrett just days before the 2020 election, those calls intensified.
However, President Joe Biden, a former chairman of the Senate Judiciary Committee, has been lukewarm to the idea of tinkering with the court, and a commission he formed to study the idea is not expected to embrace significant changes.
But demands for expanding the court or instituting other changes are likely to be reignited if the justices reverse what much of the country sees as an important precedent after hardball politics played a major role in constituting the court’s conservative membership.
“This push will go into hyperdrive if the court upholds Mississippi’s ban, let alone overturns Roe outright,” predicted Brian Fallon, the executive director of the progressive group Demand Justice.
Given Biden’s struggles and the tradition of voters turning on the party that controls the White House in midterm elections, Democrats see the abortion fight as a potential way to attract the suburban voters — particularly women — who helped elect Biden and Democratic majorities in 2020 but moved away from Democrats in elections this year.
“We’re talking about rolling back the clock on health care for women 50 years,” said Sen. Debbie Stabenow of Michigan, a member of the Democratic leadership. “Obviously a whole generation of women have been able to get the health care they need and make their own reproductive choices, and I think you’ll be shocked to fully see what this means.”
Anticipating an adverse Supreme Court ruling, House Democrats this year passed on a party-line vote a bill that would incorporate Roe into federal law. The Senate is expected to vote on it at some point to put Republicans on the record, but it has no chance of passage since it will be blocked by a Republican filibuster.
Party strategists say the abortion issue has already demonstrated salience in Nevada, another key race in the battle for Senate control. Sen. Catherine Cortez Masto, who is seeking reelection, is a strong proponent of abortion rights, while a leading Republican opponent, Adam Laxalt, opposes abortion rights and as attorney general joined efforts to limit the procedure.
In New Hampshire, a state with a history of strongly favoring abortion rights, Hassan and fellow Democrats have repeatedly criticized state Republicans for cutting off funding to Planned Parenthood and instituting new abortion restrictions such as mandatory ultrasounds for those seeking to terminate a pregnancy.
Despite the decision by Gov. Chris Sununu, a Republican, not to challenge her next November, Hassan is still likely to face difficult opposition given the political climate. She vowed in a statement on Wednesday that she “will not be shy about contrasting my record of protecting reproductive rights with their support for policies that take away women’s liberty.”
Her Democratic state colleague, Sen. Jeanne Shaheen, told reporters this week before the court hearing that “we cannot allow Republican lawmakers to turn back the clock on women’s reproductive health and rights, which is precisely what the Mississippi case seeks to do.”
“It is time to sound the alarm,” Shaheen said.