The Supreme Court’s elimination of the constitutional right to an abortion in America marked the shocking fulfillment of a decadeslong lobbying effort by the American anti-abortion movement and the GOP agenda to radicalize the court to the point where it would overturn what appeared to be settled legal rights. But just hours after the decision came out, top Republicans already had their eye on something else.
Until very recently, the possibility that millions of women around the country would lose their abortion rights seemed remote. Now we’re looking at the nontrivial possibility that Republicans attempt legislation stripping them from the whole country.
The day the decision overturning Roe v. Wade came out, former Vice President Mike Pence told far-right Breitbart News: “Having been given this second chance for life, we 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.” In what seems like the opening salvo of a 2024 White House bid, his advisers have said that he plans to focus on lobbying for a national abortion ban in the coming weeks.
Pence is not an outlier. A number of top Republicans in Congress, include House Minority Leader Kevin McCarthy, are supporting the idea of a nationwide ban on abortion after 15 weeks of pregnancy. “As we celebrate today’s decision, we recognize the decades of advocacy from the anti-abortion movement and we acknowledge much work remains to protect the most vulnerable among us,” McCarthy said in a statement the day of the decision.
For those still reeling from the emerging reality that abortion could very well be banned in most states in America post-Roe, it’s almost unfathomable to contemplate the idea that Republicans could try to pass a law that would ban or heavily limit it everywhere. Right-wingers like Pence do not believe that abortion should be a state’s issue, but a universal rights issue — for the fetus. A national abortion ban would invert the legal architecture of abortion rights so that a fetus, rather than the person carrying it, is seen as the protected individual in the eyes of federal law.
Would Republicans really pursue this? Many advocates for abortion rights believe so. “If Republicans have control of the House and the Senate and the presidency, I have no doubt that they will attempt to and likely will pass a national abortion ban,” Dana Sussman, acting executive director at the National Advocates for Pregnant Women, told me.
It’s unclear if and when the stars would align for the GOP. Given that the House is likely heading in the direction of Republican control for a few cycles, and that the Senate map for Democrats in the next couple of cycles looks very rough, it is possible Republicans could gain control of the White House and Congress in 2024. But the odds that Republicans could gain a filibuster-proof majority — 60 senators — is low given polarization trends. That raises the question of whether Republicans would consider eliminating the filibuster in order to pass a federal abortion ban.
Right-wingers like Pence do not believe that abortion should be a state’s issue, but a universal rights issue — for the fetus.
New York Magazine columnist Ed Kilgore doesn’t think it’s a stretch. “It was a Republican Senate that nuked the filibuster for Supreme Court confirmations in 2017, and the drive to reverse Roe v. Wade — now apparently at its omega point — was the single most powerful reason that happened,” he wrote in May.
There is reason for some degree of skepticism that Republicans will try to pass it. In May, Senate Minority Leader Mitch McConnell said pursuing a national abortion ban was “possible,” but then immediately backtracked and signaled that it was a state’s issue. It mirrored the way he and some Republicans initially tried to downplay the leak of the Roe v. Wade ruling, seemingly out of concern that over-the-top victory laps would generate too strong of an electoral backlash from Democrats. It’s possible that he and some other Republicans see the overturning of Roe v. Wade as the most effective political middle ground, allowing Republicans to get as retrograde as they want in red states but not inspiring war from the Democrats that might follow a national ban.
Beyond political calculations, there are also legal ones. How would the current Supreme Court, which has seemingly demonstrated a hardline anti-abortion orientation, view the legality of a federal law heavily restricting or banning abortions?
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Sussman told me that she hypothesized that Supreme Court Justice Samuel Alito’s opinion would allow for it. “Without a fundamental right to abortion, abortion restrictions are only subject to the lowest level of scrutiny that government action is subject to, and what [Alito] articulated is that a state's interest in fetal life or prenatal life is enough to justify any amount of restrictions on the abortion rights, including, from what I understand, a complete ban,” she said. “So under that articulation, a federal ban presumably would be constitutional.”
But she also added that the stakes of a federal ban could change things. “If [the Supreme Court] were to be confronted with the constitutionality of a federal ban, just the legal realities and the sort of societal realities that that would inflict upon the country might shift the analysis in some way,” she said.
University of Michigan legal scholar Leah Litman has said she’s unsure of how the court would rule on a federal abortion ban, but highlighted two ways that congressional Republicans might try to argue for the legality of a federal ban — under Congress’ power to regulate interstate commerce, or protecting fetal personhood under the 14th Amendment — and suggested that even Chief Justice John Roberts, widely considered a more moderate conservative, might be receptive to the former argument.
Until very recently, the possibility that millions of women around the country would lose their abortion rights seemed remote. Now we’re looking at the nontrivial possibility that Republicans attempt legislation stripping them from the whole country. Even if it doesn’t happen in the next few election cycles, the fact that it could happen at all is nightmarish. Democrats must immediately develop a real plan for dealing with this crisis — which includes reforming the Supreme Court itself — if it wants to guard against this possibility.