Last month, with the demise of Roe v. Wade looming, I worried about Democrats reacting to the Supreme Court decision by forming a circular firing squad. And now that the Court has killed off Roe with its radical opinion in the Dobbs v. Jackson Women’s Health Organization case, Democratic officeholders, progressive activists, and even left-leaning celebrities have already begun moving into their self-destructive positions.
Senator Elizabeth Warren, Representative Alexandria Ocasio-Cortez, and others have publicly pressured the Biden administration to take executive action so abortions remain available, including establishing abortion clinics on federal lands in states where the procedure is outlawed or curtailed. But when asked about the idea on CNN, Vice President Kamala Harris said, “It’s not, right now, what we are discussing.” An anonymous White House official tamped down the idea, reminding ABC News that the Hyde Amendment “generally prohibits [federal] funding [of] abortion except in cases of rape, incest, and threats to the life of the mother.” Ocasio-Cortez has called for repealing Hyde, but, like nearly every other House Democrat, she’s voted for a bipartisan spending compromise that retains it.
In an unusual admonition to the Senate, House Speaker Nancy Pelosi called on the body to “eliminate the filibuster so that we can restore women’s fundamental rights” with legislation passed by a simple majority, implicitly calling attention to Democratic filibuster supporters Joe Manchin and Kyrsten Sinema. Meanwhile, Pelosi was subjected to withering mockery—not just from progressive Twitter users but also from TV hosts including John Oliver and Chelsea Handler—for reading a poem in her initial response to the Court’s ruling.
Per reports from The New York Times, The Washington Post, and National Public Radio, there is mounting “frustration” from progressives over the White House’s response to the Dobbs decision. Ocasio-Cortez, on Twitter, shared a viral video of two abortion rights protestors chastising “Joe Biden’s campaign” for making a fund-raising appeal in the aftermath of Dobbs when Democrats have failed to codify abortion rights despite their congressional majorities. The New York representative sympathetically added, “We simply cannot make promises, hector people to vote, and then refuse to use our full power when they do.”
Legitimate arguments can be made about whether Democrats should take every conceivable action—without regard to existing law and Senate rules—to protect abortion rights now or whether party members should only work within the system because further erosion of norms would make all rights, reproductive and beyond, at the mercy of shifting political winds.
But why should Democrats get mired in an intraparty debate about tactics when they can unite against Republicans banning abortion?
Republicans are turning the clock back to the early 20th century—and in some cases, where dormant laws are being dusted off, the 19th—in about half of the states. The political scientists Jake Grumbach and Christopher Warshaw crunched survey data from multiple sources for The Washington Post and determined that “a majority of the public in about 40 states supports legal abortion rights.” In other words, several states present opportunities for Democrats to restore reproductive freedoms.
Here are some vulnerable Republicans.
GOVERNORS: Brian Kemp (Georgia), Ron DeSantis (Florida), and Greg Abbott (Texas)
These Republican governors signed abortion bans that are unpopular in their states.
Just this week, a Quinnipiac poll showed the Georgia gubernatorial race between incumbent Republican Brian Kemp and former House Minority Leader Stacey Abrams in a dead heat, with Abrams closing a two-point gap since January. However, a smattering of prior polls from other outfits suggests that Kemp may still hold a slight lead.
Kemp signed a 2019 law effectively banning abortion after six weeks of pregnancy, with exceptions for risking the mother’s death, “medically futile” pregnancies, and—if a police report is filed—rape and incest. The law has not been enacted because of a federal court injunction, but now that Roe is gone, the injunction should be soon lifted. Most Georgians won’t celebrate. A January Atlanta Journal-Constitution poll found that 54 percent of Georgia voters opposed the law, and 68 percent did not want Roe overturned.
The Democratic gubernatorial nominee in Texas, former Representative Beto O’Rourke, might face a tougher battle as he trails Governor Gregg Abbott by five points in the most recent Quinnipiac poll and eight points in the most recent CBS/YouGov poll. But regarding abortion policy, Quinnipiac found that Texas voters preferred O’Rourke over Abbott by two points. And 59 percent of Texans in the CBS/YouGov poll disapprove of Abbott’s handling of abortion. (The Quinnipiac poll was taken before, and the CBS/YouGov poll was partially taken before, the Dobbs ruling.)
Perhaps O’Rourke can widen that margin. Abbott has already enacted a six-week abortion ban and a ban on most distribution of abortion pills. He also signed a trigger law, which will soon detonate, banning all abortions except to save the mother’s life, with a maximum sentence of 99 years for abortion providers. Yet, according to the June Quinnipiac poll, 59 percent of Texas voters support legal abortion in all or most cases. A December Spectrum News/Ipsos poll found that 55 percent opposed the six-week ban.
As I wrote last month, Abbott’s unpopular abortion position hadn’t weakened his overall standing, because the impact of his policies hadn’t been widely felt. Most Texans seeking abortions were still getting them, either by illegally obtaining pills or by crossing state lines. But with an even more draconian law about to go into effect and disappearing abortion access in three of its four neighboring states, the loss of reproductive freedom may soon be more painfully noticeable.
In Florida, DeSantis signed a law in April banning abortion after 15 weeks of pregnancy, a rare example of the right-wing firebrand not going to the farthest possible extreme. He is being pressured by the right to go further in the wake of Dobbs, even though most Florida voters didn’t want him to go as far as he did. In a February poll from the University of North Florida, 57 percent opposed the 15-week ban, which went up to 62 percent when informed that the legislation had no exceptions for rape and incest.
Florida’s support for abortion rights is long-standing, and the state constitution includes a right to privacy that has been interpreted by state courts to cover reproductive freedom. A 2012 attempt to supersede court rulings with an anti-abortion ballot initiative failed, with 55 percent of the electorate voting against it. In fact, on June 30, a county circuit judge placed a temporary injunction on the 15-week ban because it runs afoul of the state constitution. But the Florida Supreme Court is stocked with Republican appointees—who serve six-year terms—and may follow the U.S. Supreme Court’s example, disregard precedent, and overrule the lower court. If it upholds the ban, that will give the Democratic nominee—to be chosen in an August primary—an even stronger argument for replacing DeSantis.
Other 2022 governor’s races to keep an eye on: Arizona, Iowa, Ohio, South Carolina, and South Dakota:
According to the data from Grumbach and Warshaw, these states have pro-choice majorities. (South Dakota just barely, though its voters in 2006 and 2008 defeated proposed abortion bans in referenda.)
Yet Ohio’s Mike DeWine, Iowa’s Kim Reynolds, and South Carolina’s Henry McMaster all signed effective six-week bans (injunctions have been lifted in Ohio and South Carolina). South Dakota’s 2005 trigger law lacks rape and incest exceptions—and defies the voters’ will in subsequent referenda. Nevertheless, it’s kicking in with Governor Kristi Noem’s enthusiastic support.
Also, in Arizona, where the incumbent Republican is not running for reelection, a 1901 law banning abortions enacted when Arizona was a territory might be resurrected.
The four incumbents are viewed as having easy paths to reelection in November; The Cook Report with Amy Walter rates McMaster, Noem, and Reynolds as “Solid,” with DeWine as “Likely.” But it’s worth watching to see if their unpopular abortion stances give their Democratic challengers a fresh foothold.
ATTORNEYS GENERAL: Ken Paxton (Texas), Dave Yost (Ohio), Chris Carr (Georgia), and Ashley Moody (Florida)
Whether or not to enforce abortion bans has become a flashpoint in several state attorney general races.
Texas’s Ken Paxton, long scandal ridden, was indicted in 2015 on securities fraud charges. (The case has still not gone to trial.) He is facing a whistleblower lawsuit from four litigants who claim they were fired after accusing Paxton of taking bribes. The FBI opened a criminal investigation in 2020, and Paxton is trying to get the lawsuit dismissed. He won reelection in 2018 by only three and a half points, and even before Dobbs, Democrats believed that their nominee, Rochelle Garza, had a decent chance of an upset victory.
Now, Paxton is aggressively enforcing abortion bans. After Dobbs, Paxton moved to have Texas’s musty pre-Roe ban from 1925 implemented immediately and won a state supreme court ruling mostly favorable to his argument—allowing fines and lawsuits under the old law for the time being but not criminal prosecutions. Moreover, in line with Justice Clarence Thomas’s desire to overturn Supreme Court rulings on gay rights, Paxton said he is “willing and able” to resurrect and enforce Texas’s nullified anti-sodomy law.
Garza, meanwhile, pledged to “not enforce Texas’ trigger law” and “not prosecute abortion providers.” In response to Paxton’s comments about sodomy, she quoted the recent Miranda Lambert single: “Y’all means all.”
Dave Yost successfully moved to lift the injunction on Ohio’s six-week ban on the day of the Supreme Court decision, provoking a blistering response from his Democratic opponent, Jeff Crossman, that “Yost promised to strip us of our freedoms and individual liberties, and now he’s doing it.” Yost moved so swiftly that three days later, a 10-year-old Ohio girl barely more than six weeks pregnant had to travel to Indiana for an abortion.
Georgia’s Chris Carr is working on getting the injunction lifted on Kemp’s six-week ban. At the same time, his Democratic opponent, Jen Jordan, said she doesn’t believe that the law is constitutional and wouldn’t spend tax dollars defending it. Florida’s Ashley Moody is expected to appeal the recent judicial decision blocking DeSantis’s 15-week ban and said on Twitter after the Dobbs decision, “Our office will continue working to defend state laws that protect life.” Democrats have yet to nominate her opponent, but two candidates recently pledged not to prosecute abortion providers.
Also of note, Arizona Attorney General Mark Brnovich is the one who declared the pre-statehood abortion ban to be “back in effect.” Governor Doug Ducey argues that the 15-week ban supersedes the broader pre-statehood ban and will be “asking the court to vacate the injunction” so the more lenient law can be enforced.
Brnovich is running for the U.S. Senate in Arizona, leaving the attorney general position open. Republicans will pick a nominee at the August 2 primary. Democratic candidate Kristin Mayes, who is uncontested, said, “I will advise county attorneys as Attorney General that if they try to prosecute a woman or doctor in the state of Arizona, it is unconstitutional.” (Like Florida, Arizona has a right to privacy in its constitution.)
STATE LEGISLATURES: Arizona, Michigan, and Pennsylvania
Most state houses are not closely divided, and party control after the 2022 election is not going to change. But as the Democratic group Every District is eager to point out, Republican control of the legislatures in Arizona, Michigan, and Pennsylvania is tenuous. To take power, Democrats need to flip two seats in the Arizona House, two in the Arizona Senate, three in the Michigan House, four in the Michigan Senate, twelve in the Pennsylvania House, and five in the Pennsylvania Senate.
Every District believes that the recent redistricting in those states—all three used redistricting commissions—gives Democrats an opportunity to flip the chambers. Still, victory is hardly preordained. Chaz Nuttycombe, who produces state legislative forecasts for his CNalysis operation, gives Republicans the edge in all six chambers.
As mentioned, Arizona has two abortion bans on the books—a 15-week and an overall ban—that could soon become enforceable. Michigan has a pre-Roe ban, which Republican legislators want to keep. However, Democratic Governor Gretchen Whitmer and Attorney General Dana Nessel say they’ll never enforce it. (The two are up for reelection this year.) Abortion is still legal in Pennsylvania for up to 24 weeks. Still, if a red wave elects Republican Doug Mastriano as governor and Republicans remain in charge of the legislature, that won’t last.
To be clear, none of the above races are easy wins for Democrats. And we can’t know if the abortion issue on its own will be enough to make them more competitive. But that uncertainty only makes it more imperative for Democrats to employ strategies that maximize unity and appeal to swing voters. Party infighting over parliamentary procedures and norms fuels “Democrats in disarray” punch lines that accomplish the opposite.
To motivate the pro-choice majority—which extends well beyond progressive base voters in deep blue states—to prioritize abortion, Democrats need a laser focus on states where abortion is banned or severely restricted.
If such a strategy is successful, Democrats will broaden their geographic support. That would help secure abortion rights in more states and improve the odds of Democrats retaining U.S. Senate control. Holding the Senate keeps Democrats’ judicial confirmation power. If they can keep it long enough, they will be in a position to replace the eldest Supreme Court justices: Samuel Alito and Clarence Thomas.