The Supreme Court’s decision to hear a major abortion case this year has forced a reassessment of whether Congress might pass a law that would keep the procedure legal even if the high court repeals or weakens Roe v. Wade.
White House press secretary Jen Psaki said earlier this week that President Biden is “committed to codifying Roe, regardless of the ... outcome of this case.”
But what does that mean? The political reality is that to pass anything through the Senate would require the support of 10 Republicans. And even if Democrats abolished the filibuster so they could pass an abortion law with 51 votes, they’d need support from Sens. Joe Manchin, D-W.Va., and Bob Casey, D-Pa., who both have said they support making abortion illegal after 20 weeks.
So an abortion bill that passed out of the current Congress in any of the next few years would likely need to prohibit the procedure after about 20 weeks to get Manchin’s and Casey’s votes.
The trade-off would be that if the Supreme Court upholds a Mississippi law that prohibits abortion after 15 weeks, a law passed by a Democratic Congress could unwind restrictions in numerous conservative states that are much shorter than 20 weeks. In Texas, for example, Gov. Greg Abbott signed a law this week that bans abortions after a fetal heartbeat can be detected, which can be as early as six weeks after gestation.
That’s assuming the Supreme Court does not entirely overturn Roe v. Wade, which is also a possibility in the case of Dobbs v. Jackson Women’s Health Organization, the case involving the Mississippi law. This is the first time an abortion case will be heard by the court since the confirmation of Justice Amy Coney Barrett last fall. Conservatives now have a 6-3 majority on the court.
If the Supreme Court significantly weakens abortion protections, Democrats would face a choice: Would they be willing to restrict access in states dominated by Democrats in order to expand it in states dominated by Republicans?
“If the court finds this particular law constitutional, then it opens a wider door that would allow for 12 weeks or lower, even heartbeat bills. That's obviously a much greater incentive [for Democrats] to get [a ban] that's not seven or eight weeks,” said Charles Camosy, a professor of theological and social ethics at Fordham University.
But, Camosy added, a national law “would hamstring California, New York, Oregon and places that have much more robust protections for abortions.” Because states represented by Democratic senators tend to have liberal abortion laws, the instinct of those lawmakers might just be to “protect home states,” he said.
Polling shows that about two-thirds of Americans do not want to see Roe v. Wade overturned. At the same time, more than two-thirds of Americans favor restricting abortion after the first trimester, which is the first 12 weeks of pregnancy.
Kelly Baden, who organizes progressive state lawmakers around the country through her work at a group called the State Innovation Exchange, said that “political polling on abortion is deeply unsatisfying and is an oversimplification of some deeply complex beliefs.” She pointed to a tweet thread by an opinion researcher who cited survey data indicating that many Americans don’t want the government to decide when women can get an abortion.
But Baden also said the Supreme Court’s looming decision in the Dobbs case, which is expected to be heard later this year with a decision likely early next year, is a wake-up call for progressives to invest in long-term political organizing around the issue. She said conservatives have out-organized the left on abortion.
“We have not matched that intensity, and we're realizing we need to. It's unfortunate it might take losing Roe v. Wade to do that for us,” Baden said.
“We are already operating under a wildly uneven abortion access landscape. It has been a truly devastating year already for anyone who cares about reproductive freedom,” she said, citing a report earlier this year that found over 500 laws to restrict abortion had been introduced in state legislatures across the country in 2021.
But if Congress does not reach an agreement on what a national standard should be — following the example of several European countries that have passed laws allowing abortion, but only until 12 to 16 weeks — the most likely scenario is that the highly uneven patchwork already in place across the states only grows more so.
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