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What will Congress do on abortion post-Roe?

Here’s what Democrats and Republicans will probably do

- May 9, 2022

After a draft Supreme Court opinion that would overturn Roe v. Wade leaked, Senate Majority Leader Charles E. Schumer (D-N.Y.) announced that the Senate will vote Wednesday on the Women’s Health Protection Act. If passed, the bill would legalize access to abortion services nationwide.

The bill will almost certainly fail. In February, virtually the same bill failed to advance when antiabortion Sen. Joe Manchin III (D-W.Va.) voted against cutting off debate, along with Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), the GOP’s two abortion rights senators.

But this vote is just the opening salvo in battles to come. If the Supreme Court strikes down Roe, the abortion debates will change dramatically — both outside and within Congress. Activists on both sides will try to shape opinion and pressure lawmakers to do more to either codify or curtail abortion rights. Lawmakers typically respond to activists on issues of core importance to their party. However, both the Democratic and Republican congressional caucuses will divide internally, as party leaders and rank-and-file members consider which proposals to prioritize and how much political capital to dedicate to abortion fights.

How will abortion politics change for congressional Democrats?

Historically, when Democrats control Congress, they’ve tried to keep abortion off the agenda, as Kelly Rolfes-Haase and I found in research on abortion voting in Congress from 1993 to 2018. Until the end of the George W. Bush administration, a significant contingent of antiabortion Democrats joined Republicans to pass restrictions on the procedure — most notably, the 2003 Partial Birth Abortion Ban Act, which limited late-term abortions.

Even in the first years of the Obama presidency, antiabortion Democrats almost derailed the Affordable Care Act until they were assured that no federal funding would go to health insurance that covered abortions. Today, Sens. Manchin and Robert P. Casey Jr. (D-Pa.) still oppose abortion, making it hard for Democrats to expand reproductive rights in a 50-50 Senate.

The rest of the current Democratic caucus strongly supports abortion rights. Women’s rights groups are a pivotal force in the Democratic coalition and have invested heavily in electing such politicians. Outraged and energized, these groups are planning “Bans Off Our Bodies” protests across the country May 14, pressuring Democrats for results.

How will abortion politics change for congressional Republicans?

Antiabortion groups are just as central to the Republican coalition as abortion rights groups are to the Democrats. When Republicans control Congress, they vote on numerous bills to block taxpayer funding of abortion and to restrict access. Republicans hold the largest number of abortion votes when they control Congress and there’s a Democratic president. Determined to oppose a pro-choice administration, Republicans can energize their own supporters without alienating voters who oppose the restrictions, since the president will block them.

If Roe is overturned, antiabortion activists will demand more aggressive action. That may create problems if activists demand more than Republicans can deliver. For instance, in 2015, as the Republican congressional leadership negotiated with the Obama administration to pass a bill funding the government, members of the highly conservative Freedom Caucus and some others refused to vote for the compromise bill unless it defunded Planned Parenthood. (Planned Parenthood has long received Medicaid and other federal funding for non-abortion-related health care such as gynecological exams and contraception.)

Fearing that a government shutdown would be blamed on Republicans, then-Speaker John A. Boehner (R-Ohio) decided to appease detractors by resigning his speakership after negotiating a final budget deal. He further appointed a special committee to investigate accusations that Planned Parenthood was selling fetal tissue.

If Republicans take over Congress after the 2022 midterms, a newly empowered antiabortion movement will expect a nationwide abortion ban. But there will still be a Democrat in the White House.

Could Congress resurrect Roe? Well, it can try.

What will the parties do next in Congress?

With razor-thin majorities and a public ambivalent on abortion, Democrats can’t do much. While most Americans support Roe, that unanimity crumbles when asked about specific policies. For example, only 50 percent of self-identified Democrats believe abortion should always be legal at 14 weeks. The leaked draft Supreme Court opinion was about a Mississippi law banning abortion at 15 weeks.

Instead, Democrats will use their majority power to shape public opinion. For instance, leaning on the moral authority of their female members, House Democrats recently held a hearing featuring three women of color, Reps. Barbara Lee (D-Calif.), Pramila Jayapal (D-Wash.) and Cori Bush (D-Mo.), who testified about why they had abortions. Expect hearings showcasing the plight of women in states with abortion restrictions.

Democrats will also try to find ways to help low-income individuals seeking abortions. They are eager to eliminate the Hyde Amendment, which prohibits using federal Medicaid funds for abortion. But they cannot get any Republican support.

However, since contraception is broadly popular, Democrats will work to expand access to contraception — while warning that overturning Roe could threaten access. Last week Democratic Sens. Patty Murray (Wash.) and Ron Wyden (Ore.), chairs of the Senate health and finance committees, launched an investigation into whether insurance companies are complying with the Affordable Care Act mandate to provide contraception without co-pays. Legislators and activists will also pressure the Biden administration to make it easier to get abortion pills.

If Republicans take Congress after the midterms, they will probably return to familiar patterns when paired with a Democratic president: Hold numerous votes on abortion restrictions, although probably on more restrictive policies than voted on previously. Senate Republican leader Mitch McConnell (Ky.) has already signaled support for voting on a national abortion ban. Republicans will propose many of these efforts through their female members to show that women support restricting abortion. Antiabortion activists have lined up Sen. Joni Ernst (R-Iowa) to introduce a Senate bill banning abortion after six weeks.

Republicans risk backlash if their proposals go beyond what Americans support. Many of the 13 states that have passed “trigger bans” — complete bans on abortion set to go into effect immediately once Roe is struck down — include no exceptions for incest or rape. Yet 56 percent of self-identified Republicans believe that abortion should be legal if the pregnancy results from rape, and almost one-third think abortion should be legal at 6 weeks.

Still, if Republicans win the presidency and the House in 2024, and if a favorable Senate map gives them a filibuster-proof majority, these policies could become law.

Michele L. Swers (@MicheleSwers) is a professor of American government at Georgetown University and author of “Women in the Club: Gender and Policy Making in the Senate” (University of Chicago Press, 2013).