Republicans’ calculated quiet on nationwide abortion ban will vanish if they control Congress

Last Wednesday, NBC reported on Republican Senators discussing federal legislation to ban abortion nationwide if they win Senate control in the midterms. No clear commitment to putting such legislation on the floor appears from the story.

But put it together with polling on the issue, and — as sure as one plus one equals two — you have the political equivalent of mathematical certainty: Republicans will vote to enact such a ban.

According to the latest Politico/Morning Consult poll, by a near 2-1 majority, Americans favor keeping Roe v. Wade in place. Other polls concur. But the just-leaked, apparent opinion-to-come from the conservative Supreme Court majority says they are about to toss it.

That leaves the door open to Republicans satisfying a clamoring base and enacting a national ban on abortion if they regain Senate majorities in November. 

The polling explains why at a press conference last week, when reporters asked Senate Minority Leader Mitch McConnell (R-Ky.) multiple times about the decision, he deflected to the current D.C. parlor game: “Who leaked the draft opinion?” The possibility of federal abortion restrictions, he said, is not “the story today.”

Distraction is the better part of valor.

Even on May 7, when McConnell said a national ban was “possible,” he couched his statement in caution: “[I]f and when the court makes a final decision, I expect everybody will be more definitive.” 

To discuss enthusiasm for a national ban now is a political loser that McConnell would prefer to bury in deflection until Nov. 9, the day after the midterms. Only 20 percent of Americans want a total ban on abortion.

McConnell’s north star is always fixed — his own power, especially to control Supreme Court nominations. His return run as Senate majority leader requires that Republicans retake the Senate. So it makes sense for him to keep the powder dry until the midterms give him the power to fire.

In states where races could be close, like Ohio and Pennsylvania, women’s fury over a Supreme Court decision rescinding Roe as the law of the land could well be the difference-maker in November. Nearly one-quarter of American women have abortions.

People vote their self-interest, and reproductive freedom is as visceral a self-interest as there is for a lot of women. And for the many who are married and who have had abortions, husbands will often feel the interest personally as well.

And so, the first Senator whom NBC quoted, Iowa Republican Joni Ernst, followed the leader: When asked whether Congress would limit abortion nationally, Ernst responded like an old-time scratched record: “We’re debating now. We’re going to continue to debate that. I think that’s important that we do that, to debate it.”

She didn’t dare say the obvious: If Republicans capture the majority, they will be jumping over each other to sponsor a national ban. Their fervid anti-choice voters will demand it.

As South Dakota’s Republican Sen. Kevin Cramer put it understatedly, “I think you could expect that pro-life activists would push for federal protections.” Few Republican representatives could be expected to say “No” to that.

Even the presidentially ambitious Ted Cruz (R-Texas) packaged his views in innuendo: “I have supported numerous federal bills, and I’m sure there will be more pieces of federal legislation that are considered,” Cruz said of nationwide abortion restrictions, adding that “contested policy issues” should be decided in “democratically elected bodies.”

Hmmm. The Senator is member of such a body. Is there any mystery what Cruz will do if Republicans get a Senate majority?

Check out his previous actions. In January 2021, before Roe was in imminent jeopardy, he sponsored a measure to set a lower ceiling on legally permissible abortion than had existed under the nearly 50-year-old judicial precedent. And in September 2020, Cruz joined 19 colleagues in pressuring the FDA to classify Mifaprex, the so-called “abortion pill,” as “dangerous.”

You don’t have to be a weatherman to know which way this Category 5 hurricane will be blowing if Republicans have Congressional majorities. 

Of course, they are unlikely to obtain a filibuster-proof majority of 60 Senators. As to bypassing the filibuster to adopt a national abortion ban, McConnell said this week that if he becomes majority leader again, “We don’t want to break the Senate. And that’s breaking the Senate.” 

Do not credit that statement too quickly. This is the same man of principled consistency who wouldn’t allow Merrick Garland to have a Supreme Court nomination hearing eight months before the 2016 because it was too close to a presidential election, and who then rammed through Trump’s nomination of Amy Coney Barrett mere weeks before the 2020 election.

For sure we can count on him to keep his word.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.