We look at what the leaked Supreme Court draft opinion on abortion means for midterm elections and what Congress can do to guard access to contraception and same-sex marriage from a similar fate.
SCOTT SIMON, HOST:
The leaked U.S. Supreme Court draft decision published by Politico this week sent shockwaves through people and politics. The draft said that access to abortion, a right legally grounded in privacy, is not a constitutional right. And if this opinion holds, it would overturn Roe v. Wade, which has protected the right to have an abortion without excessive restrictions for half a century. President Biden said he believed the reasoning laid out in the draft decision would challenge other privacy-related rights, including same-sex marriage and access to contraception.
We’re joined now by NPR’s senior Washington editor and correspondent Ron Elving. Ron, thanks so much for being with us.
RON ELVING, BYLINE: Good to be with you, Scott.
SIMON: What the president said sounded like alarms for those who’ve fought for causes like access to contraception and the right to same-sex marriage. Is this a rallying cry for Democrats, and do they have the votes?
ELVING: Yes, it is certainly a rallying cry, and they will respond to that – Democrats – most of them. But on your second question, no, they do not have the votes for legislation that would protect abortion rights or same-sex marriage or any of the other rights. In the house, yes, but in the Senate, we are still living with the filibuster. It still takes 60 votes to cut off debate and proceed to a vote on legislation. So there will be an attempt to do that next week, probably on Wednesday. It will get all or nearly all the Democrats. It will be opposed by all or nearly all the Republicans. There could be one or two defections on either side, but that doesn’t matter. They won’t get 60, so it’s moot. Yet it’s a chance for senators to show their colors, to stand up and be counted, maybe make speeches, maybe make videos to show in their campaigns. That’ll be its main value. And that depends on voters tuning in and engaging with this. Many Americans don’t and won’t.
SIMON: Ron, if the draft decision comes about and Roe is overturned, could that galvanize the Democratic party and voters in the midterms?
ELVING: Well, Democrats have said for years that everything would be different if the Republicans finally got their chance to repeal abortion rights and perhaps other rights regimes as well – to revisit the struggles of the ’60s and ’70s and reverse the perceived outcomes. Now we’re going to see if they were right. You know, with Friday’s robust jobs report, you can begin to imagine a Democrat’s bumper sticker for this fall that says jobs, jobs, jobs and Dobbs, Dobbs, Dobbs.
SIMON: Dobs, of course, refers to the Dobbs v. Jackson Women’s Health Organization, the 2018 Mississippi law that bans abortions after 15 weeks. Lower courts had ruled to prevent enforcement before it was brought to the Supreme Court.
ELVING: That’s right. I’m talking in Supreme Court code, calling it Dobbs. But in this case, lower federal courts had looked at these cases and looked to the Supreme Court for new guidance. You know, 50 years ago when Roe v. Wade burst on the American consciousness, at first no one knew what those names meant, either. But, you know, it’s hard to find anyone who doesn’t know Roe v. Wade now. Maybe one day that will be true of Dobbs.
SIMON: And will Republicans try and capitalize politically off these results, too?
ELVING: Some are going to play it down, stick to talking about inflation. That’s what consultants advise. But campaigns, especially midterm campaigns, are not so much about persuading people in the middle. They’re about motivating the people who already agree with you so they’ll get out to the polls. So the Republicans will point to the Dobbs decision in some cases and say, see, we promised, and we delivered. Every vote to overturn Dobbs was a justice appointed by a president named Bush or Trump.
SIMON: Pew Research Center polls hold that around 60% of Americans think abortion should be legal in all or most cases. So if this draft decision is an indication of what is likely to come, it seems like the Supreme Court would be out of step with the majority of U.S. opinion at a politically very divisive time.
ELVING: Yes. And polls show the people who will be happy about this decision are concentrated in age groups 55 years and over. Now, I have no objection personally to people being 55 or older, but there is a certain expectation about what that means for politics in the years ahead. It’s often been said that the court was out ahead of its skis in 1973 with the Roe ruling, but most Americans were not ready for it then. Now, understanding that the court is certainly free to be out of step with public opinion, whatever it is, there is a risk that this opinion goes too far. Some say Roe did. You could say the Dobbs opinion we saw this week was at least this aggressive. Was it too much so? The next political generation will tell us.
SIMON: Ron Elving, thanks so much.
ELVING: Thank you, Scott.
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