Oral arguments in the latest abortion case before the Supreme Court sparked conservative hopes and liberal fears that Roe v. Wade might be overturned.
But some Republicans are worried about the fact that the conservative majority on the Supreme Court seemed skeptical of the Roe precedent even as millions have voted for the party’s candidates precisely to reverse this decision.
With a ruling in Dobbs v. Jackson Women's Health Organization expected before next year’s midterm elections, the potential exists for liberals and suburbanites to be inflamed by a decision chipping away at Roe, while conservatives could be demoralized if Republican-appointed justices again flinch from challenging the nearly 50-year-old precedent.
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One Republican operative told Axios that the end of Roe could “derail what could be a 2010-level victory next year for the party and the movement." That year, Republicans gained 63 House seats in the first midterm election of Barack Obama’s presidency.
In the 1994 midterm elections during Bill Clinton’s first term, Republicans added 52 seats to win their first House majority in 40 years. The GOP also captured the Senate. President Joe Biden is at risk of a similar electoral repudiation. Less than a year away, the RealClearPolitics polling average shows him at 42.3% approval and 52.2% disapproval.
Roe has allowed Republicans to run for Congress, governor or even president as opponents of legal abortion without being able to do much to influence policy on the issue because the Supreme Court had taken it out of the purview of the democratically elected branches of government.
Without Roe, Republicans would be in a position to potentially outlaw abortion, especially in red states. This comes as the party is starting to win back some of the suburbanites who started voting for Democrats under former President Donald Trump.
A Morning Consult poll compared Biden’s approval ratings among suburban voters with Trump’s at this point in 2017, a year before the midterm elections in which Democrats regained control of the House. Biden was barely more popular with Trump, with 44% of suburbanites approving of the incumbent to 53% who disapproved. For Trump, those numbers were 41% approval and 55% disapproval.
Several of the votes in play for an anti-Roe reversal are justices nominated by Trump: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Senate Republicans kept the late Justice Antonin Scalia’s seat vacant for almost a year to prevent Obama from filling it with Merrick Garland, who now serves as Biden’s attorney general.
“The Republican campaign class is a lot less socially conservative than Republican voters,” said a GOP strategist. “They are going to expect the worst.
Roe was thought to be in danger in 1992, a presidential election year, after a dozen years of Republican appointments to the Supreme Court. The last Democratic-nominated justice serving at the time, Byron White, dissented in Roe in 1973.
Instead, a 5-4 majority upheld the core holding of Roe that abortion was a constitutionally protected right. This included three justices nominated by Republican presidents, with the main opinion written by Justice Anthony Kennedy, who was selected by Ronald Reagan after the Senate rejected conservative nominee Robert Bork.
But the decision, Planned Parenthood v. Casey, did expand the range of state-level abortion restrictions that passed judicial muster. Republicans were able to simultaneously run against Roe and pass more popular abortion restrictions such as parental notification laws, waiting periods, informed consent measures, and bans on taxpayer funding for late-term abortions.
Polls show majority support for Roe, but less backing for an abortion policy as permissive as Casey requires, with some variation depending on how the questions are asked.
It is also possible that little would change for many Republicans in practice. A reversal of the Roe/Casey abortion framework would send policymaking on the issue back to the states. Red states would enact bans and other more restrictive policies. Blue states would likely protect legal abortion by statute. Some states have already passed “trigger laws” mandating each outcome were the Supreme Court to reverse itself.
Leading blue-state Republicans such as Massachusetts Gov. Charlie Baker and Maryland Gov. Larry Hogan support legal abortion. Mitt Romney had to change his abortion position while governor of Massachusetts in 2004 in anticipation of running for the Republican presidential nomination.
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The Republican Party has not nominated a presidential candidate who supported Roe since it was originally decided.