Jan 28, 2022 - Politics & Policy

Supreme Court vacancy reignites abortion debate

Abortion rights supporters are seen in front of the Supreme Court to mark the Roe v. Wade anniversary.
Abortion rights supporters in front of the Supreme Court on Jan. 22, the 49th anniversary of Roe v. Wade. Photo: Anna Moneymaker/Getty Images

The coming push to confirm a new Supreme Court justice is giving fresh energy to Democrats, who'd already seized on the threat of diminished abortion access to drive midterm voter turnout in swing states.

Why it matters: After decades of being a motivator for Republican voters, efforts to limit abortion are a potential liability for GOP candidates.

  • If the Supreme Court votes to overturn Roe v. Wade, they’ll be under tremendous pressure to defend the most extreme position — the complete illegality of abortion — which polls show is broadly unpopular.

Democratic candidates in states like Nevada, Arizona and Wisconsin are expecting abortion to motivate base voters and move suburban women away from Republicans — especially if the Supreme Court upholds Mississippi's 15-week abortion ban before it breaks for its summer recess.

  • “In Wisconsin, we have started to see energy around this issue in places that you don't see organizing around issues like that,” state treasurer Sarah Godlewski told Axios. Godlewski is among a slew of Democrats running for the seat of Sen. Ron Johnson (R-Wis.).
  • "These first-time organizers are worried they would have to go to places like Minnesota to get health care," Godlewski said.
  • A 172-year-old Wisconsin state law making providing an abortion a felony could go back into effect if Roe is overturned.
  • Incumbent Democrats like Sens. Catherine Cortez Masto (D-Nev.), Mark Kelly (D-Ariz.) and Maggie Hassan (D-N.H.) have all been vocal on the issue amid their re-election prep.

If Roe is overturned, Democrats will be dependent on victories in state legislatures and gubernatorial races as a backstop — especially in states like Arizona, Georgia, Ohio and Wisconsin.

  • In each, restrictive abortion laws would automatically go back into effect.
  • Gov. Tony Evers of Wisconsin, a Democrat, vetoed five Republican-authored anti-abortion bills last month that had been passed by the state's Republican-controlled legislature.
  • Evers' highest-profile Republican challenger, former lieutenant governor Rebecca Kleefisch, has promised to sign a bill banning abortions once doctors can detect a fetal heartbeat.

But, but, but: The Susan B. Anthony List, an anti-abortion group, is turbocharged with donations and plans to spend $72 million this midterm year, a person familiar with the budget told Axios.

  • That's nearly $20 million more than it spent during the 2020 cycle, which included a presidential election.

Go deeper: The Republican Party also isn't shying away from abortion as a central talking point.

  • As Axios' Lachlan Markay reported Wednesday, Republicans plan to use the process to replace Justice Stephen Breyer to target Senate Democrats facing competitive re-election fights — with likely expenditures into the millions.
  • "The courts have been typically more energizing for conservatives," Carrie Severino, director of the Justice Crisis Network told Axios. "It hasn't been as much so for the left."

Yes, but: A concern within Republican circles is that if the court upholds Roe, a healthy chunk of religious conservatives who've been invested in appointing conservative justices may feel resignation and not vote this fall.

  • The GOP also faces challenging polling: a November 2021 Washington Post – ABC News poll found that 60% of Americans want Roe upheld, including 58% of independents.
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