The throngs of demonstrators amassed outside the US Supreme Court, enraged over a report that a draft majority opinion would strike down abortion rights protected by Roe v. Wade, chanted a crisp, clipped demand to Democratic officials: “Do something!”
The cry echoed across social media and news outlets early Tuesday, a visceral appeal that – not for the first time during the Biden administration – underscored Democratic voters’ frustration with intraparty gridlock in Washington. But as a new era in the long fight for abortion rights appears near, it has also become clear that the Democrats best positioned to take action often reside far from Capitol Hill, occupying or vying for increasingly powerful state offices, which would no longer be constrained by the landmark 1973 Roe v. Wade decision that legalized abortion nationwide.
That reality could alter the political landscape heading into this fall’s midterm elections, broadening the battlefield and raising the profile of candidates for governor and state attorney general, as well as down the ballot into state legislative races. The inability of Democrats in Washington, despite narrow majorities in Congress and President Joe Biden in the White House, to come up with the votes to pass federal legislation guaranteeing abortion rights – and the likelihood that, even if they were to retain or build on those majorities, action would be difficult – has positioned Democratic state leaders as the last line of defense against Republican efforts to seize on the court’s potential decision and move forward r seeking either to ban or severely restrict the right to an abortion.
“With gridlock in Washington at an all-time high, the battle to protect reproductive health care will be fought in the states and won by Democratic governors,” said Wendi Wallace, deputy executive director of the Democratic Governors Association. “This draft opinion should serve as a wake-up call to anyone not paying attention to what’s at stake in governors’ races this November.”
The top spokesman for the Democratic Attorneys General Association made a similar argument – and implored Democrats to consider the shifting terrain as they decide where to direct their election season contributions.
“If Roe is overturned, this fight will move squarely into the states,” said Geoff Burgan, DAGA’s communications director, “and we need national donors, both large and small, to recognize that reality and invest in electing Democratic AGs this year.”
While Democrats at the state level quickly moved to underscore the stakes and, pointedly, what they planned to do if elected or reelected to their positions, Democratic campaign organizations on the federal level have struggled to articulate their plans going forward.
In a statement late Monday, the Democratic Senatorial Campaign Committee said that reports of the Supreme Court draft opinion, which has since been confirmed as authentic by Chief Justice John Roberts, had “dramatically escalated the stakes of the 2022 election” and that protecting and expanding the Democratic Senate majority would be key to maintaining “the power to confirm or reject Supreme Court justices.”
But even as the Senate Democratic group warned that Republicans were prepared to move forward with “federal legislation to outlaw abortion after six weeks of pregnancy,” the DSCC offered no promise that even a new and larger Democratic majority would even attempt to legalize abortion on the national level – a reality underscored on Tuesday by Democratic Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, both of whom reiterated their unwillingness to consider scrapping the Senate filibuster, a 60-vote threshold that effectively gives Republicans a veto on most legislation.
Meanwhile, the leader of the Democratic Congressional Campaign Committee, the party’s House campaign arm, implored Democrats to vote in the fall.
“Democrats: We’re angry and hurt, I know. But it’s not about filibuster, size of the court or what the Senate hasn’t passed. It’s about Republicans, not us,” New York Rep. Sean Patrick Maloney, the DCCC chair, tweeted Tuesday morning. “We can save our freedoms. But, it’s November, stupid.”
House Democrats voted 218-211 in September to pass the Women’s Health Protection Act, with one Democrat, Texas Rep. Henry Cuellar – who has DCCC support in his primary against a pro-abortion rights challenger – voting no. No Republican backed the legislation. In the Senate, the bill fell well short of cracking the filibuster, with Manchin joining Republicans in opposition.
On Tuesday, after Biden condemned the draft opinion, White House press secretary Jen Psaki reiterated the President’s past calls for Congress to act but also stated what has become obvious to many Democrats and abortion rights advocates.
“There has been a vote on the Women’s Health Protection Act,” she said, “which would do exactly that, and there were not even enough votes, even if there was no filibuster, to get that done.”
Democrats look local in search for message that sticks
A January CNN poll on abortion and overturning Roe v. Wade showed a majority of Americans opposed to an abortion ban, with only 30% saying they wanted the Supreme Court to gut the decision. Most, 52%, said that in the event Roe was overturned, they would want their states to become a safe haven for women seeking abortion.
But capitalizing on those sentiments has traditionally been difficult for Democratic candidates.
Democratic firm Slingshot Strategies recently tested messaging on the issue in a pair of swing congressional districts – Virginia’s 2nd and Michigan’s 7th, which are currently held by Democratic Reps. Elaine Luria and Elissa Slotkin, respectively. The polling found that abortion issues were a “powerful motivator” across the board and that those passions would escalate if the high court struck down Roe – large majorities in both districts were supportive of the 1973 decision.
Finding a political message that both motivated and persuaded voters to support Democrats in the districts, though, was more complicated. The polling ultimately found that immediately and consistently casting in local terms what would be an unpopular decision by the high court – while eschewing more familiar national talking points – was Democrats’ best bet.
“Successful Democratic messaging focuses on state-specific changes that could impose new government restrictions on abortion where voters live, with the incumbent Democratic Congresspeople as messengers rather than national Democrats,” said Evan Roth Smith, Slingshot’s pollster and co-founder.
Unlike their federal counterparts, Democratic statewide officials and candidates across the country responded to the news by flexing the immediate and tangible power their offices have in the fight over abortion.
“As long as I am governor, Nevada will continue to champion reproductive freedom,” said Democratic Gov. Steve Sisolak, who is up for reelection this year.
In Georgia, Democrat Stacey Abrams, who is making her second gubernatorial bid, said that as governor, she would “defend the right to an abortion and fight for reproductive justice.”
Pennsylvania Attorney General Josh Shapiro, who is running unopposed in the Democratic primary for governor in a state where Republicans control both legislative chambers, said: “Given the dynamics in the commonwealth of Pennsylvania, the next governor is going to have a bill on their desk that will restrict or outlaw abortion rights and they will have a decision to sign it or veto it.”
“I will, of course, veto it,” he said.
Shapiro went on to condemn Washington’s “inability to codify Roe over many years” and said Pennsylvania Democrats “cannot afford to lose” the veto power currently held by term-limited Democratic Gov. Tom Wolf.
“In the absence of DC acting,” Shapiro said. “I am prepared to lead.”
A similar dynamic – with the GOP poised to act in legislatures they control – holds in Wisconsin and Michigan, where the respective Democratic governors, Tony Evers and Gretchen Whitmer, are vying for second terms this fall.
Michigan Democrats’ unique challenge
In Michigan, a fierce state-level fight over abortion rights is already underway, as statewide-elected Democrats up for reelection this year seek to use their power to protect the state’s 27 abortion providers in 13 counties.
If Roe v. Wade is repealed, a 1931 Michigan law would snap back into place, one that makes performing or undergoing an abortion a felony in almost all cases – including rape and incest – with an exception only to save the life of the mother. Republicans control the state legislature, making a repeal of that law unlikely.
Whitmer in April sued the prosecutors in the 13 counties with abortion providers, asking the Michigan Supreme Court to determine that the state’s Constitution protects abortion rights and to block those prosecutors from enforcing the 1931 law.
Whitmer’s chances of victory in court are improved by the 2020 victories of two Democratic-backed state Supreme Court candidates, giving liberals a majority on the bench.
“To the nearly 2.2 million women in Michigan whose access to abortion hangs in the balance, I promise you this: I will fight like hell to make sure abortion remains safe, legal, and accessible in our state,” Whitmer said on Twitter after Politico’s report.
Michigan’s Democratic attorney general, Dana Nessel – who has discussed her own abortion when she was pregnant with triplets in 2002 and doctors told her she would miscarry all three unless she terminated one – is refusing to defend the 1931 law in court and has said she will not enforce it.
Nessel’s opponent, Republican Matt DePerno, has said he does not support abortion rights under any circumstances and, citing Politico’s report, said the draft ruling “will be such a great win for the unborn and for states’ rights.”
Democrats playing from behind in the states
Abortion being thrown back to the states would put Democrats’ struggle to win state legislatures into stark relief. For years, Republicans have heavily invested in down-ballot races, in part, to control these state chambers in a post-Roe v. Wade world. By doing so, lawmakers in 13 states – including Texas, Tennessee and Missouri – have already passed so-called trigger laws, by which bans would go into effect if Roe is overturned.
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Democrats have not kept pace in the fight for state legislatures, instead focusing the bulk of the party’s energy and money on federal races. In the eight years that former President Barack Obama was in office, the party lost nearly 1,000 state legislative seats, according to counts of legislative losses. But even with some recent renewed interest, Democrats have not been able to meaningfully reverse those GOP gains.
“The state that you live in shouldn’t dictate fundamental American freedoms, like the right to bodily autonomy. But if this opinion comes down gutting Roe, that is where we are now,” Democratic Legislative Campaign Committee President Jessica Post said late Monday. “The fight is in the states.”
In 2020, Democrats hoped that an increased investment and focus on legislative races would result in wins across the country. Instead, the only chambers that flipped were in the Republican direction – and although the DLCC raised more than $50 million in their fight to win down-ballot races, the figure paled in comparison with money that went to long-shot Senate contests. The party won its US Senate majority with a pair of runoff victories in Georgia in January 2021, but suffered heavy defeats, despite taking in lordly sums of campaign donations, in GOP stronghold states such as Kentucky and South Carolina.
“This should be a tough lesson for Democrats,” Post said. “Our policymaking power in Washington is limited and the fight to protect abortion rights will now lie in state legislatures.”
This has been most evident this year, when Republican-controlled legislatures across the country have, in anticipation of a possible ruling on Roe, positioned themselves to pass strict abortion laws as quickly as possible. Much of this happened in places where Democrats could do little. In one week alone this year, Republicans in four states – Kentucky, Florida, Oklahoma and Tennessee – passed laws to curtail abortion access that were most similar to the Mississippi 15-week abortion ban that is currently before the Supreme Court.
The power of Democratic governors has also been on display, for example in Kansas, where Gov. Laura Kelly – who is also up for reelection in November – has stood in the way of several attempts by the Republican-controlled legislature to pass strict abortion laws in the red state.
On Tuesday, Kelly made clear she would continue to use her office to impede those attempts, saying that she has “always believed that every woman’s reproductive decisions should be left to her and her physician” and that she will “continue to oppose all regressive legislation which interferes with individual rights or freedoms.”
This story and headline have been updated.