The end of Roe v. Wade and Casey v. Planned Parenthood is the story of a death oft foretold. Ever since Amy Coney Barrett took Ruth Bader Ginsburg’s seat on the Supreme Court, the extinguishing of a constitutional right to abortion was predictable. Yet somehow the Biden White House seemed sideswiped on Monday, May 2, when Politico posted a leaked draft from Justice Samuel Alito of a majority decision ending Roe and Casey.
According to a dispiriting report in The Washington Post, Biden’s team was taken aback by the leak and scrambled to come up with a response. But, the newspaper reports, after “marathon meetings and phone calls among White House officials, government lawyers, outside advisers and federal agency officials, a sobering reality settled in: There’s little the White House can do that will fundamentally alter a post-Roe landscape.”
The claim of powerlessness from the White House has some basis in reality. There are certainly executive actions the Biden administration can take to shore up reproductive freedom (such as providing federal funding to help poor women who need abortions to travel to jurisdictions where it remains legal). But these are Band-Aid solutions—and also subject to legal challenge. Although the Democrats control the White House and both houses of Congress, they don’t have the votes necessary to overcome a filibuster and codify abortion rights into law. Two key Senators (Arizona’s Kyrsten Sinema and West Virginia’s Joe Manchin) have made it clear that they are no-go on abolishing the filibuster. In any case, the Democratic Senate includes two members who have traditionally been anti-abortion—Manchin and Pennsylvania’s Bob Casey, whose father, Pennsylvania Governor Robert Casey, was the named defendant in the decision paired with Roe that established the right to abortion.
But do the headwinds against them mean they should capitulate? In fact, given the lay of the political terrain, Democrats should see the abortion fight as a way to energize their party. Poll after poll shows Roe is popular: In a Fox poll from early May, 63 percent of voters wanted Roe to stay, against 23 per cent who want it overturned.
Even more significantly, a Yahoo News/YouGov poll from the same period showed that making the abortion issue salient will help Democrats in the midterms. According to this poll, in a generic question of congressional preference among registered voters, Democrats got 44 percent, against 39 percent for Republicans. Yahoo goes on to report that “when voters were asked to choose instead between a ‘pro-choice Democrat’ and a ‘pro-life Republican,’ GOP support fell to 31 percent while Democratic support held steady—more than doubling the gap between the two candidates, to 13 percentage points.” Another poll, from CBS, suggested that if Roe is overturned, 37 percent of Democrats say they are more likely to vote in the midterms, against only 16 percent of Republicans.
The political path should be clear: Democrats have every incentive to make abortion a top-line issue in the midterms (and indeed in subsequent elections). They should go to the voters with a clear promise: We are the defenders of Roe. If you give us 53 or more senators and the House, we will codify Roe into law.
But to be credible that message requires Democrats to be a fighting party, one with a leadership ready to wage relentless political war. It’s far from clear that they have that leadership right now.
Joe Biden remains a reluctant commander in the defense of Roe. The very first time he even used the word “abortion” as president was on Wednesday, May 4—two days after the leak of the Alito draft. As The Washington Post reports, “The effort to overturn Roe thrusts Biden into a central, and at times uncomfortable, role as a champion of protecting abortion access. A Catholic, Biden initially opposed Roe v. Wade, saying the court went too far in its decision, and his views on the issue evolved slowly throughout his political career.”
“During the 2020 presidential primary,” the Post adds, Biden “found himself at odds with Democratic voters for his support of the Hyde Amendment, which prohibits federal funds for abortion, and he withdrew that support after fierce backlash from Democratic activists.”
Biden can be pushed to be more active in defending the right to abortion—but it’s never going to be where his heart is. If this crisis requires fighting leadership, Biden is ill-cast to become a champion of reproductive rights. His natural instincts are to compromise, to avoid conflict, and to seek out areas of agreement. That might work with other domestic issues, but on abortion—where GOP-controlled states have already enacted horrific policies like empowering bounty hunters to target women seeking abortions—Biden’s compromising approach to politics will only lead to more failure.
Nor, sadly, is Biden alone in wanting to avoid a fight. Last Wednesday, South Carolina Representative Jim Clyburn—who ranks third in the House Democratic leadership and is arguably the key figure who helped Biden secure the Democratic presidential primary in 2020—went to Texas to support his anti-choice colleague Henry Cuellar, who is fending off a primary challenge from progressive pro-choice candidate Jessica Cisneros. Speaking to reporters, Clyburn downplayed the importance of abortion, saying, “Does this issue carry more weight than voting [rights]? I don’t think so. I think restoring the Voting Rights Act is a much weightier issue than this.” What makes this absurd claim even more galling is that Democrats haven’t been able to pass any law shoring up the Voting Rights Act.
To be sure, not all Democrats are so hopelessly defeatist as Biden and Clyburn. House speaker Nancy Pelosi, Senators Elizabeth Warren and Kirsten Gillibrand and Representative Alexandria Ocasio-Cortez all made strong statements that spoke to the urgency of the moment. (Pelosi’s words were weakened by the fact she joined Jim Clyburn in supporting Henry Cuellar).
Ocasio-Cortez’s words in particular are worth attending to: “People elected Democrats precisely so we could lead in perilous moments like these—to codify Roe, hold corruption accountable and have a president who uses his legal authority to break through congressional gridlock on items from student debt to climate. It’s high time we do it.”
This taunt is aimed directly at Joe Biden. It remains to be seen if he can be roused out of his slumber. If not, the party faces some stark choices in the months ahead.