Anti-abortion activists hold signs outside the Supreme Court on June 24, 2022. | Stefani Reynolds/AFP via Getty Images
The Supreme Court’s decision overturning Roe has made a national ban possible, but Republicans face considerable political obstacles.
In the wake of Friday’s Supreme Court ruling overturning Roe v. Wade, Republicans made clear that their ambitions don’t stop there: Some are already lining up to support a nationwide abortion ban if they recapture control of Congress in November’s midterm elections.
Former Vice President Mike Pence tweeted Friday that Republicans “must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land.”
House Republican leaders — including Minority Leader Kevin McCarthy, Republican Study Committee chair Jim Banks, and Judiciary Committee ranking member Jim Jordan — also said that they would back a nationwide ban on abortion after 15 weeks of pregnancy, CNN reported.
“In the days and weeks following this decision, we must work to continue to reject extreme policies that seek to allow late-term abortions and taxpayer dollars to fund these elective procedures,” McCarthy said in a statement Friday. “As we celebrate today’s decision, we recognize the decades of advocacy from the pro-life movement and we acknowledge much work remains to protect the most vulnerable among us.”
The repeal of Roe v. Wade left the United States with a patchwork of state laws governing abortion. In parts of the South, someone seeking an abortion would need to travel hundreds of miles to get one. But a national ban would supersede even permissive state laws in states that have been working to expand access to abortion. One estimate found that denying all wanted abortions would increase pregnancy-related deaths by an 21 percent nationwide if there aren’t effective means for pregnant people to self-manage their own abortions.
A national ban has been a longstanding goal of anti-abortion advocates, who have for months been trying to plot out a strategy to rally Republicans around the issue in this year’s midterm elections and push 2024 GOP presidential candidates to endorse the policy. The Supreme Court has now put that goal potentially within reach.
But it’s not clear how politically feasible a nationwide ban is. Embracing such a broadly unpopular policy could carry electoral costs for Republicans by further activating Democratic voters. And the party would need to consolidate power in Congress and the White House to actually make it law.
The political obstacles to enacting a nationwide ban
Republicans are widely expected to recapture the majority in the House of Representatives in the midterm elections, meaning a ban could pass. But it probably wouldn’t win support from a filibuster-proof majority in the Senate, even if the GOP regains control of the chamber as projected, though Republicans could choose to eliminate the filibuster to pass the ban.
A Democrat remains in the White House would veto any such legislation. But there’s no such guarantee after 2024, especially given that most Americans don’t want President Joe Biden to seek reelection.
Still, it’s not clear that Republicans would have the votes. They have previously introduced bills that would recognize life from the moment of fertilization, effectively banning abortion nationwide. But only 19 senators and 164 House members have supported the legislation, far short of the numbers it would need to pass.
A 15-week ban, as House Republican leadership have floated, might have better prospects. That’s because the vast majority of abortions — about 93 percent, according to the Centers for Disease Control and Prevention — already happen at or before 13 weeks of pregnancy, and Americans are generally less supportive of abortion further into pregnancy. But it’s still an earlier cutoff than currently exists in most states where abortion is legal.
Senate Minority Leader Mitch McConnell has been cautious to entertain the idea publicly. After a draft version of the Supreme Court opinion was leaked to Politico in May, he said that a nationwide ban was “possible,” but later backtracked, saying there wasn’t a veto-proof majority in the Senate for abortion-related legislation of any kind.
Embracing a nationwide ban could ultimately backfire for Republicans, given that 85 percent of voters think abortion should be legal in some or all circumstances. This year, there are other factors at play, including inflation and an unpopular Democratic president, and the November elections are still months away — a long time for Democrats to sustain momentum around the issue. Still, the prospect of a ban could be a motivating factor for voters this fall.
“I definitely think it’s a jolt for the Democrats, and that it’s not really a jolt for Republicans. Republicans are already fired up and ready to show up to vote. So I don’t think it helps Republicans at all,” Jay Williams, a Georgia-based GOP strategist, told me when the draft opinion leaked.
Former President Donald Trump has also reportedly predicted that the Supreme Court’s decision could ultimately hurt Republicans politically, especially among suburban women who helped propel him into office in 2016, suggesting that he would be skeptical of embracing a nationwide ban.
But abortion advocates have argued that those concerns may not stop Republican efforts, pointing to Texas lawmakers who didn’t suffer any significant political backlash for passing a ban last year on abortions after fetal cardiac activity is detected, typically about six weeks into pregnancy.