Before the bombshell POLITICO leak this week of a draft majority opinion calling for Roe v. Wade to be overturned, midterm election prospects for Democrats were looking bleak.
Could the leak turn things around for the liberal party, become a boost for conservatives – or neither?
How the leak could help Republicans
If the leaked opinion – which was dated Feb. 10 and has not been made final – does hold, one benefit for Republicans would be proof they delivered on promises to the anti-abortion movement, Vox explained.
This movement has put in decades of effort and investment towards appointing judges amenable to overturning Roe v. Wade “and building power at the state level to ensure that they could ban abortion in those places if it ever became a possibility,” according to the outlet.
At the Supreme Court level, former President Donald Trump appointed one third of the court during just one term in office. All three of those justices – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – are assumed to be part of the court majority in favor of the opinion to overturn Roe v. Wade. Trump also appointed 226 federal judges with lifetime tenure, more than any other president in one term.
“I think you’re going to see [Republican] senators, especially the guys on the Judiciary Committee — Mitch McConnell and all of his lieutenants — saying, ‘This is why we focus on judges,’” said Brendan Steinhauser, a GOP strategist in Texas. “They’re going to talk about this nonstop to the base to turn them out. This will be about saying, ‘We delivered for you. Give us the majority and we will deliver again.’”
When Kavanaugh was appointed amidst controversy regarding claims of sexual misconduct, his confirmation “did likely affect the outcome, especially by helping Republicans in the Senate,” of the 2018 election, said Five Thirty-Eight politics editor Sarah Frostenson.
According to The Washington Post, abortion has typically been a motivating issue for Republicans more than Democrats.
“There were more single-issue voters who opposed abortion than who supported it,” said the outlet.
Neil Newhouse, a Republican pollster, said that the news could keep energizing pro-life voters even as it elicits criticism from Democrats, including President Joe Biden and Vice President Kamala Harris.
“Democrats need energy right now more than Republicans do,” he said. “You’ve got to think potentially this might weigh a little bit more on the scale for Democrats, but it will energize Republicans as well.”
How the leak could help Democrats
Kelley Robinson, executive director of Planned Parenthood Action Fund, said the leaked decision could be a wake-up call for Democrats.
“People are starting to hear, and people are understanding it,” she said, according to The Washington Post. “Voters woke up this morning to news that their constitutional right to abortion is soon to be a thing of the past.”
Democrats are already at a disadvantage for the midterms, since the party of a sitting president typically does not do well halfway through their term. Biden’s approval rating has been low as well, although a recent poll found that it had improved slightly.
According to The Post, the leak could help more progressive candidates in Democratic primaries ahead of the midterm elections in November.
Jaime McLeod Skinner, a Democrat running against incumbent Rep. Kurt Schrader in Oregon, said in a phone interview with the outlet that the news is a reminder to voters ahead of the May 17 primary.
Vox said “Republicans are wary of Democrats energizing their lethargic base around abortion rights,” and that the news could help boost liberal voter turnout.
“I definitely think it’s a jolt for the Democrats and that it’s not really a jolt for Republicans. Republicans are already fired up and ready to show up to vote. So I don’t think it helps Republicans at all,” said Jay Williams, a Georgia-based GOP strategist.
Kristen Soltis Anderson, a Republican pollster, also said a decision to overturn Roe could lead to an increase in fundraising and activism for Democrats. Yet, she thinks other issues such as the price of gas and the war in Ukraine, will have a greater impact on the midterms.
A Democratic strategist close to the White House, who spoke to The Post on the condition of anonymity said the party will still have to focus on more than abortion for success in the midterms.
“This is not our midterm message. An issue is never a message,” the strategist said. “The issue of whether a woman has a right to get an abortion or not needs to be wrapped in a broader frame of individual rights and a political party that is geared very much toward bullying and taking away those rights from people.”
On the abortion issue, polls continue to show that public opinion is on the Democrats’ side. Protestors also gathered across the country after the opinion was leaked.
“Some polling suggests that protecting abortion rights is a priority for Democrats in particular,” said Five Thirty-Eight policy reporter Alex Samuels.
So, the news could increase “Democratic enthusiasm to turn out in a year when Republicans might otherwise have an enthusiasm advantage,” said Nathaniel Rakich, senior elections analyst for Five Thirty-Eight.
Why does it matter?
However, Geoffrey Skelley – an elections analyst who is also with Five Thirty-Eight – doesn’t think the issue will motivate swing voters, and therefore could have little impact on the midterms.
If the Republicans fare better in the upcoming elections as expected, it could make it impossible for Democrats in Congress to codify Roe v. Wade, which Biden has called on elected officials to do. Even now, that option seems like a long shot.
In order to codify the right to an abortion, Democrats would need to get rid of a the 60-vote threshold needed to pass legislation in the Senate, as they have a one-vote majority. As long as filibuster rules allowing the minority party to slow down legislation stand, codifying efforts are blocked.
“It’s impossible to imagine federal legislation on abortion passing anytime soon,” said Five Thirty-Eight, and some Democrats, including Sen. Joe Manchin of West Virginia, are opposed to ending the filibuster.
“The only scenario where I could see Democrats passing a pro-abortion bill is if, in 2023, they somehow hold the House and pick up seats in the Senate,” said Rakich. “If they win, say, 52 seats, the votes could be there to abolish the filibuster. But Democrats holding the House and picking up seats in the Senate is a pretty unlikely scenario.”
Rakich said that it could take Republicans another three years to enact a national abortion law, since they would have to flip the Senate, the House of Representatives and the presidency. However, he said that scenario seems more likely than Democrats winning in 2022.
Outside of Congress, the Supreme Court leak could have an impact on gubernatorial races, in states such as Wisconsin, Michigan, Pennsylvania and Illinois.
“Simply put, those offices are actually in a position to do something about this,” Rakich said.
Primaries for the midterms wrap up in September and the elections will be held Nov. 8.