Republicans on Tuesday took a decidedly cautious stance in response to a leaked Supreme Court draft opinion that would overturn Roe v. Wade, a political thunderbolt that would realize longtime GOP ambitions but risks alienating voters before the midterm elections.
Rather than promising to seek specific federal restrictions on abortion that could be newly legal with the end of Roe, Republicans largely pointed to states to take action, redirected attention to the leak itself, and accused Democrats of taking the extreme position.
“All of this puts the cart before the horse,” Senate Minority Leader Mitch McConnell (R-Ky.) said at a press conference when asked if he would support legislation to federally restrict abortion if Republicans win control of the Senate.
He urged reporters “to concentrate on what the news is today: Not a leaked draft, but the fact that the draft was leaked.”
In the House, GOP leaders expressed general support for restricting abortion, but did not call for specific restrictions on the national level.
“House Republicans are committed to upholding the sanctity of life, and we will continue to fight to be a voice for the truly voiceless. There is nothing more special, extraordinary, and worth fighting for than the miracle of life,” House Minority Leader Kevin McCarthy (R-Calif.), Minority Whip Steve Scalise (R-La.), and House Republican Conference Chair Elise Stefanik (R-N.Y.) said in a joint statement.
The House Republican leaders and McConnell called for an investigation into the leak.
Politico published a draft court decision for the Dobbs vs. Jackson Women’s Health Organization case Monday night that suggested conservatives on the Supreme Court had the five votes needed to overturn the landmark 1973 decision that recognized the right to obtain an abortion.
The leak shattered the Court’s tradition of confidentiality during deliberations, as no draft opinion in the court’s modern history had been leaked to the public ahead of publication. Chief Justice John Roberts ordered an investigation into the leak.
The substance of the opinion and the judges’ votes are not final and may change. But if Roe is overturned, states and the federal government will have broader authority to restrict or ban abortion. Thirteen states have “trigger” laws in place that would automatically ban almost all abortions if Roe is overturned.
Several Republicans pointed to states to take action.
Rep. Jim Banks (R-Ind.), saying in a statement that “this could be the most important victory for protecting the unborn in American history,” called on Republican Gov. Eric Holcomb to convene a special legislative session to pass anti-abortion legislation if Roe is overturned. Rep. Darin LaHood (R-Ill.) said in a statement that “states should be empowered to enact Pro-Life protections for the unborn.”
Republicans also sought to cast Democrats as being the extremists on abortion ahead of the elections.
Axios obtained a talking points memo from the National Republican Senatorial Committee on the draft that said the end of Roe would mean that “state and local officials closest to the people will make laws that reflect the will of their states.” It accused President Biden and Democrats of having “extreme and radical views on abortion that are outside the mainstream of most Americans.”
Republican National Committee Chairwoman Ronna McDaniel similarly accused Democrats of being “abortion extremists.” The rhetoric is in line with a recent Republican Study Committee messaging memo that advised members to portray those in favor of abortion rights as extremists.
Polls consistently find that Americans think the Supreme Court should not overturn Roe, with a 2021 Gallup poll finding that 58 percent of Americans said that the ruling should stay in place. That reflects a risk that leaning too hard into the abortion issue could alienate voters ahead of the midterm elections.
Even if Republicans wanted to move to federally restrict abortion, they do not have the power to easily do so. If they are in the majority in both chambers next year, they face the same challenge that has so far prevented Democrats from passing federal legislation to prohibit states from banning abortion: The Senate filibuster.
Though they are confident about winning back the House, election analysts do not expect that Republicans will win a 60-seat majority in the Senate that allows them to advance legislation without needing support from Democrats. And even if they did, Biden would be there with a veto pen.
McConnell said Tuesday that he would “absolutely” keep the Senate filibuster in place. “We don’t want to break the Senate.”
Anti-abortion advocates still hope and expect to see some movement on anti-abortion legislation in Republican majority, though, even if the chances of the legislation becoming law are slim to none.
Jessica Anderson, executive director at the conservative Heritage Action for America, said that she sees three main anti-abortion bills in Congress that could be part of a federal Republican push to federally restrict abortion.
The Life at Conception Act, which would recognize a fetus as a person for the purposes of applying the 14th Amendment, has 18 Republican co-sponsors in the Senate and more than 100 in the House.
Rep. Mike Kelly (R-Pa.) introduced the Heartbeat Protection Act, which would ban abortion after a heartbeat is detectable, normally around six weeks. It has 54 cosponsors.
And third, the Pain-Capable Unborn Child Protection Act would ban abortion after 20 weeks. The bill has 166 House cosponsors and 45 cosponsors in the Senate, and versions of the bill passed the House in 2013, 2015 and 2017, when it was later blocked by Democrats in the Senate.
Mallory Carroll, vice president of communications at the anti-abortion Susan B. Anthony List, said that “it’s still important to have these votes” even without a 60-vote majority that can break a filibuster.
“These different bills allow us to educate Americans about what’s going on in the womb at a given point, and to further the cause by building consensus, eventually, for these pieces of legislation when we have a pro-life president who will sign them,” Carroll said.