After Supreme Court Justice Samuel Alito’s draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey was leaked, Senator Kyrsten Sinema released a statement supporting legislation establishing a federal statutory right to an abortion. The Arizona Democrat also indicated that she wouldn’t abandon her support for the filibuster.
On Twitter, Representative Alexandria Ocasio-Cortez blasted the statement: “We could protect Roe tomorrow, but Sinema refuses to act on the filibuster.” The Squad member added, “She should be primaried for good measure.”
This is an ominous sign of further disunity among Democrats. The apparently imminent demise of Roe should bring Democrats together, not tear them apart. The battle ahead to restore reproductive rights requires a unified party, fully placing responsibility on Republicans for stacking the Court with abortion opponents and destroying the Court’s credibility.
Next week, the Senate is expected to vote on legislation codifying abortion rights, which is likely to fail. The Senate held a vote on a similar bill in February. It only mustered 46 votes, with opposition from Democratic Senator Joe Manchin and two nominally pro-choice Republicans, Senators Susan Collins and Lisa Murkowski. (Three pro-choice Democratic senators were absent.)
If that bill does not succeed, fissures within the Democratic Party may quickly widen. Perhaps there will be a push to accept a bill authored by Collins and Murkowski, which is narrower than the Democratic bill. (The succinct Collins-Murkowski bill tracks the 1992 Casey decision, delineating that states “may restrict the ability of a woman to choose whether or not to terminate a pregnancy after fetal viability unless such a termination is necessary to preserve the life or health of the woman,” but murkily adds that states “may enact regulations to further the health or safety of a woman seeking to terminate a pregnancy.” The Democratic bill spells out other state-level abortion restrictions—which are sometimes disingenuously promoted by abortion opponents as supportive of women’s health—that would no longer be permissible, such as mandatory “tests, services, or procedures prior to or subsequent to the abortion.”)
If Collins-Murkowski were put on the Senate floor, the bill would either lose progressives and fail to get a simple majority or keep Democrats united yet fail to get 60 votes and overcome a Republican filibuster.
No matter what, in the wake of legislative failure, clamor would build among many Democrats to abolish the filibuster and, in all likelihood, add seats to the Supreme Court to boot. (Senator Ed Markey, Representative Adam Schiff, and Representative Ilhan Omar quickly called for expanding the Court after Alito’s draft leaked.) After all, even if an abortion rights bill cleared the filibuster-free Senate, this Supreme Court would almost surely strike it down. (The Democratic bill voted on in February asserts congressional power to legalize abortion via the Constitution’s commerce clause, necessary and proper clause, and due process clause in the Fourteenth Amendment. Conservative judges generally reject attempts to use those clauses to authorize progressive legislation. The Collins-Murkowski bill does not assert a specific constitutional basis for its provisions.)
Any push to abolish the filibuster and expand the Court will put Democratic congressional leaders in an impossible position: Either hold the vote and lose, stoking ire among Democratic base voters toward Manchin, Sinema, and anyone else refusing to erode existing norms; or don’t hold a vote, stoking ire among the Democratic base toward the party as a whole for not fighting as hard as possible to save reproductive freedoms.
If you believe that abolishing the filibuster and expanding the Court is the only way at this juncture to save our reproductive freedoms, such intraparty division is no disincentive. You might as well shine a bright light on those standing in the way, stir up the progressive base, and try to keep the House and net at least two Senate seats—so Democrats can instantly end the Court’s conservative majority.
Of course, this is already shaping up to be a very challenging midterm election for Democrats, so any intraparty division could easily make beating the midterm odds even harder. But aside from the short-term politics, Democrats should be extremely wary of an abortion rights strategy that ultimately hinges on court packing. Rank politicization of the Court would put all rights, reproductive and otherwise, at severe risk forevermore.
If the Supreme Court were expanded on a partisan basis, America’s 233 years with an independent judicial branch would be over. From that point forward, whenever one party controlled the presidency and the Senate, control of the Court would automatically follow. Fundamental rights cherished by progressives would never be guaranteed to last past each rightward political pendulum swing. (And the past several years have provided sharp reminders that there will always be rightward political pendulum swings.) A Democratic-packed Court could initially uphold a federal abortion rights law. Still, not a subsequent day would go by without acute awareness that the days such a ruling could last were finite.
The imminent demise of Roe creates a strong argument for the proposition that the Court is already hopelessly partisan, so there is no independent judiciary to preserve. A common cynical argument is that the Court has always been political. Following that logic, all Republicans have done in recent years is make the Court’s political nature plain. In turn, the argument goes, Democrats should accept reality, respond in kind, and pack the Court without reservation.
But the historical trajectory of the Supreme Court is not a straight line into the partisan abyss. Yes, over the centuries, the Court has had low moments: Dred Scott, “separate but equal,” child labor, eugenics, Japanese internment, gay-sex bans, and the 2000 election (to name just a few).
Such horrible examples stain the Court. But they don’t make a mockery of it. The judiciary has repeatedly recovered from its lowest moments and, on the whole, retained its legitimacy. The Founders’ design, with lifetime appointments providing insulation from short-term political considerations, has proved its worth. One recent example: This anti-abortion Court, with its three Donald Trump appointees, refused to let Trump steal the 2020 election. If court packing became par for the course, a future Oval Office autocrat could quickly nominate Supreme Court stooges willing to rubber-stamp a coup attempt, and a spineless Senate could easily ratify them.
The prospect of a federal abortion law upheld by a Democratic-packed Supreme Court may be enticing because it seems like the shortest path between two points—when, in fact, it is cutting corners. Reproductive freedom can only be a right if it is not constantly subjected to shifting political winds. It needs a balanced Supreme Court with renewed credibility. That means recalibrating the Court the old-fashioned way—with Democrats winning enough presidential and Senate races to be in a position to replace outgoing conservative activist justices (and, in the event of a Republican president and Democratic Senate, returning the favor for Merrick Garland and refusing to fill any vacancy).
Considering that polls have long shown broad support for Roe, Democrats can deliver a narrative explaining how (as we assume will happen) Republicans rolled back abortion rights by warping the Court. For example:
While they long accused Democrats of promoting judicial activism, Republicans are the ones who embraced Donald Trump, who explicitly pledged to nominate Supreme Court judges who would overturn Roe. Trump won in 2016 without a popular vote mandate. Yet once in control of the presidency and the Senate, Republicans scrapped the filibuster for Supreme Court appointments, setting the stage for three new Trump-appointed justices, confirmed on narrow votes. After four years, the voters ended Republican control of Washington, but Trump’s judges, having passed the Republican litmus test on abortion, carried out Trump’s pledge.
And the conservative Court did so largely with an argument that since abortion rights weren’t recognized in the 19th century, they shouldn’t have been recognized in the 20th and, therefore, should be taken away in the 21st.
Democrats don’t believe that’s how the Supreme Court should work. Joe Biden didn’t use any political litmus tests when nominating Ketanji Brown Jackson, nor did Barack Obama in appointing Elena Kagan and Sonia Sotomayor. If the public again entrusts Democrats, they will continue to nominate qualified judges who will interpret the Constitution reasonably and not turn the clock back to the 19th century.
There’s no telling how long it might take for Democrats to reshape the Court, but there is plenty to do in the interim to bring us closer to that goal. Chiefly, statehouse battles. A New York Times analysis of state laws finds that “abortion may be banned or tightly restricted in as many as 28 states in the weeks and months ahead.” These include a few Biden-won states (Arizona, Georgia, Michigan, and Wisconsin) and states that Trump won by single digits (Florida, North Carolina, Ohio, Iowa, and Texas). And let’s not forget: Voters in deep-red states like North Dakota, South Dakota, and Mississippi reject extreme abortion bans in referendums, and Republican Senate candidates with extreme abortion views blow winnable races in states like Indiana and Missouri. If state-level Republican officeholders go too far, Democrats may have new opportunities to flip state legislatures and governorships, allowing both to change state laws and build a bench of competitive candidates who can win in Senate races in a broader range of states.
This is not just about Democrats making electoral gains for their own sake. It’s about making it more likely that Democrats can control the Senate, confirm more Supreme Court judges, restore the Court’s legitimacy, and truly protect reproductive and other human rights.
Of course, this is a strategy with a long and uncertain time horizon. Democrats surely can’t win every statehouse battle. There are no signs yet that the governors of Texas and Florida risk losing reelection this year despite their newly signed abortion bans. And at the federal level, even if Democrats manage to pull off a minor miracle in the 2022 midterms, they will face a brutal Senate map in 2024. We can’t know when conservative seats on the Supreme Court will become vacant and if Democrats will have the power to fill those seats when the time comes.
In what will likely be a lengthy interim, we will be a nation divided between states with reproductive freedom and states without. Where freedom does not exist, we cannot be callous about the suffering that will be inflicted upon those who become pregnant. But that shouldn’t compel us to pursue short-cut strategies that would ultimately harm our ability to protect rights and would divide Democrats at a time when party unity is needed more than ever. While the long fight is fought, we can support organizations that directly help people who need abortions to get abortions, no matter where they live.
Major errors in American history have been reversed before. The constitutional amendment prohibiting alcohol—foisted on America by a fervent and persistent moralistic political faction—sparked such a backlash. It was so widely flouted that it was repealed in 14 years. The Supreme Court opinion upholding laws that criminalized gay sex was overturned after 17 years. Despite the devastating blow that the overturning of Roe would be, reproductive freedom advocates would begin this new battle from a position of relative strength, with an electorate generally in favor of abortion rights. Democrats may have a hard time politically when the abortion debate focuses on how far rights should be extended. But Republicans often have a hard time when the debate focuses on whether we should have abortion rights at all, and that time appears to be now.
Now is not the time for needless squabbles. Democrats need to unite around shared goals and disempower those determined to deny Americans their reproductive freedoms. No matter how long it takes.