The October surprise may have arrived in early May.
The seismic revelation that the conservative majority on the Supreme Court appears ready to overturn nearly a half century-long constitutional right to an abortion sent a shock through a yet-to-be defined midterm election campaign.
Such a decision – if a draft opinion by Justice Samuel Alito published by Politico on Monday holds through a final vote on the court – would initiate stunning legal and societal changes in the United States. It could give Democrats, who could be headed for heavy losses in November, an issue with which to galvanize activist voters and potentially counter some Republicans targeting high inflation and cultural issues in the suburbs.
Of course, the implications of this story stretch far beyond Washington, partisan politics and dueling interpretations of the law, the nature of precedent and the Constitution.
Losing access to abortion would mean millions of women would be deprived of the right to make decisions about their own bodies – even if their health or very lives are at risk. The burden for this huge erosion of women’s rights is likely to fall heavily on poorer, minority women who already have worse health outcomes and access.
Conversely, the overturning of the landmark Roe v. Wade decision would also be the story of generations of conservative activists, who mounted a sincere moral mission to end what they see as an inhumane procedure that they think is antithetical to America’s founding values.
Yet for all its human dimensions, the issue of abortion is an inherently political question. After all, if the court overturns Roe v. Wade, it would be the culmination of successive Republican political campaigns that produced a conservative majority on the court. And it would further widen the growing cultural, legal and political gulf between Republican-led states, where abortion would likely be banned, and Democratic-run bastions where legislators will likely keep it legal.
The Democratic challenge
The challenge now for Democrats – in the run-up to the midterm elections in November and potentially for years to come – is whether they can build a similarly effective campaign on abortion as Republicans have.
For decades, Republicans up and down the ballot have emphasized calls to abolish abortion and the need to create majorities in Washington to build a Supreme Court hostile to abortion rights.
While Democrats have used the issue to activate their base and raise money – see the influence of EMILY’s List, which backs pro-abortion rights female candidates, for example – that same single-minded concentration on this core issue was never as pronounced at Democratic presidential, congressional and local events.
That difference may reflect the revolutionary zeal of conservatives mobilizing to overturn a status quo and the complacency of liberals who had lived with it for most of their lives.
One anti-abortion activist, Mallory Carroll, who serves as vice president of communications at Susan B. Anthony List, told CNN’s Erin Burnett on Tuesday that the issue always motivated the right more than the left.
“Historically, the intensity gap has favored pro-life candidates,” Carroll said, but she added that she believed the issue would motivate voters from both sides in November.
That same realization pulsated through Massachusetts Democratic Sen. Elizabeth Warren’s comments on Tuesday outside the Supreme Court.
“The Republicans have been working toward this day for decades,” Warren said. “They’ve been out there plotting, carefully cultivating these Supreme Court justices so they can have a majority of the bench who would accomplish something that the majority of Americans do not want.”
It’s fair to question a political system that saw then-President Donald Trump, who failed to win a popular vote majority, nominate the three justices who cemented the conservative dominance of the bench. And there are even firmer grounds to bring up then-Senate Majority Leader Mitch McConnell’s hypocritical maneuverings that produced that edge.
But for the most part, Republicans worked through valid political structures to reach the Rubicon that the Supreme Court seems about to cross. And Democrats lacked the ruthlessness to match their passion for this single goal.
Much has been made of polls that show that Americans overwhelmingly oppose overturning Roe v. Wade since the Alito draft emerged on Monday night. A CNN poll in January, for instance, showed 69% would oppose such a decision.
But the question for Democrats is: can they get people to vote on it?
Former Texas state Sen. Wendy Davis thinks they will, after seeing pro-abortion rights rallies spring up around the country on Tuesday.
“It’s just the beginning of what I think is going to be an important tipping point in the 2022 election cycle,” the Democrat said on CNN’s “AC360.” For her view to be borne out, Democrats – from President Joe Biden and Vice President Kamala Harris down to local candidates – will have to show a political intensity and relentless message discipline that has so far eluded them in a tumultuous time.
Harris gave a passionate speech on the issue at Tuesday’s EMILY’s List gala, saying, “How dare (Republican leaders) tell a woman what she can do and cannot do with her own body?”
But there is no guarantee a singular focus on abortion will mitigate stiff headwinds Democrats are facing on issues like high gasoline prices and inflation.
How Republicans may be vulnerable
On the face of it, Democrats suddenly have one answer to a problem they’ve been facing for weeks: What is their message in a midterm election campaign weighed down by an unpopular President and an apparent inability to answer voter concerns over high inflation, immigration and crime?
In theory, it should be simple for them to knit together the looming abortion ruling with claims that Republicans – some of whom are embracing hardline campaigns against transgender rights and demagoguing discussions of race in education – have raced to radical extremes. A message stressing the need to save abortion rights – or punishing Republicans for overturning them – might also be a way to shore up support among suburban female voters who were critical to Democrats winning the House in 2018 and Biden’s 2020 victory.
The issue could offer an opening in Republican-run states where large numbers of Democratic women face losing their constitutional right to an abortion. Texas Democratic gubernatorial candidate Beto O’Rourke clearly thinks so. He announced a rally for abortion rights in Houston on Saturday, and cut a video that showed every sign of putting the issue at the center of his long-shot campaign to unseat Republican Gov. Greg Abbott.
“We are going to organize, we are going to rally, and we are going to fight for the rights of our fellow Texans, especially the right to an abortion that is under attack in this state unlike any other place in the country,” O’Rourke said.
Abortion is an issue that will emphasize one of the emerging characteristics of Texas politics – the schism between Republicans, who dominate state power and draw on the state’s vast heartland, and cities like Houston where most Democratic voters live. That’s a divide mirrored across the country.
Democrats who have raised concerns about the intensity of their base enthusiasm also hope to use the issue to skewer Republicans in swing states like Wisconsin. As the Politico story reverberated, Sen. Ron Johnson, who’s the most vulnerable Republican incumbent senator this year, was already trying to shift the conversation back to topics that have put Democrats on the defensive.
“You take a look at open borders, 40-year high inflation, record gas prices, rising crime,” Johnson said. “They can’t talk about the results of their governance, so they’ve got to try and find something else to run on.”
Muted conservative celebrations
Conservatives ought to have been celebrating on Tuesday at the prospect that a longed-for political victory was in reach.
But many were oddly reticent, reflecting the uncertain political impact of this lightning bolt. Many chose to concentrate on the release of the draft opinion – a hugely unusual breach of Supreme Court security – demanding a leak inquiry and stiff punishments for the culprit.
“You need, it seems to me to – excuse the lecture – to concentrate on what the news is today. Not a leaked draft, but the fact that the draft was leaked,” McConnell, now the Senate minority leader, told reporters.
Another member of the Senate Republican leadership, Sen. John Thune of South Dakota, also seemed reticent to weigh in on the impact the Alito draft opinion – and an eventual final Supreme Court decision – could have on the midterms.
“I don’t know it’s necessarily a party issue,” Thune told CNN. “I think it’s more of an issue of conscience.”
Republicans’ caution may reflect concern that the political furor could cause some conservative justices to water down their position and threaten a victory on Roe v. Wade. But it also shows how a campaign shaping up inexorably in the GOP’s favor now suddenly has an unpredictable element.
And Democrats think they have an opening.
“They’re like the dog that caught the bus,” Senate Majority Leader Chuck Schumer said. “They know they’re on the wrong side of history. They know they’re on the wrong side of where the American people are.”
CNN’s Alex Rogers, Manu Raju, Melanie Zanona, Morgan Rimmer and Ryan Nobles contributed to this story.