Monday evening’s failed vote on an unconstitutional 20-week abortion ban was part of a coordinated effort between congressional Republicans and their far-right base to try to set up vulnerable Democrats in red states to lose in the 2018 midterm elections. Their strategy, however, could just as well backfire.
A combination of new polling, GOP vulnerabilities, and longstanding legislative and judicial backstops reveals a political reality at odds with the wisdom of these tactics.
Legislation without unanimous consent requires an initial 60 votes in the U.S. Senate to bypass the threat of a filibuster, or unlimited debate on an issue. (Remember Democratic Sen. Chris Murphy and his 15-hour hold over the Senate floor over gun control back in 2016? That was a filibuster.)
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Senate Majority Leader Mitch McConnell (R-KY) no doubt knew he didn’t have enough votes to pass a 20-week abortion ban, as was the case in 2015 when he brought a similar ban to the floor even though President Barack Obama had threatened to veto it. Once again, the vote was always meant to be primarily about politics, not policy—this time forcing several Senate Democrats from red states to go on the record about an issue that abortion foes have done their best to vilify.
Under a GOP-held U.S. House of Representatives where only a simple majority of votes is needed to pass “shock value” abortion bills, and a Trump administration where unelected bureaucrats dictate restrictions on abortion, birth control, and LGBTQ health care, anti-choice Republicans and their allies know how much more they could achieve with absolute control over the Senate. So they’re trying to force out enough Democrats to secure a GOP supermajority in the Senate come this November.
And McConnell was willing to do his part.
“We’ve talked to him many times about this,” Susan B. Anthony (SBA) List President Marjorie Dannenfelser told Rewire in an interview shortly before House Republicans passed a related 20-week ban last October. McConnell, she said, “has no problem bringing it up on the floor as an important thing to get people on record for, to have the conversation, to build the vote ’til next time.”
Abortion opponents are hoping that when the bill comes up next time, Republicans will have increased their Senate majority and ended the legislative firewall between a nationwide prohibition on legal abortion care at 20 weeks, further eroding access as they work to do away with it entirely.
This scenario would require the elusive Senate GOP supermajority, or close to it. Republicans hold 51 seats in the chamber, but two of those belong to Sens. Susan Collins (ME) and Lisa Murkowski (AK), who have mixed records on reproductive rights, though so far they’ve been reliable “no” votes on 20-week bans. Democrats, meanwhile, have 47 seats and can depend on favorable reproductive rights votes from the two Independents who caucus with them. When it comes to the 20-week ban, Democrats lose three members: Sens. Joe Manchin (WV), Joe Donnelly (IN), and Bob Casey (PA). All three backed the latest version of the legislation.
Within minutes of Monday’s vote, SBA List was at work to unseat Senate Democrats who had opposed it. The organization announced ad campaigns against four of them: Sens. Sherrod Brown (OH), Claire McCaskill (MO), Heidi Heitkamp (ND), and Jon Tester (MT)—all from states that President Trump won.
“Those senators who voted against this life-saving bill need to know that we saw what they did and will fight to hold them accountable—and defeat them,” Dannenfelser wrote in a Tuesday email soliciting donations from supporters.
Political Pitfalls Mar Anti-Choice Strategy
Though anti-choice advocates hope that highlighting the abortion rights positions of vulnerable Democrats may help them secure an allied Senate GOP supermajority, recent polling indicates that Democrats across the board could, in fact, benefit at the ballot box from embracing abortion rights. That’s because according to findings released earlier this month by the nonpartisan research firm PerryUndem, “Republicans have more voters ‘outside the tent,'” or with different positions on the issue, than Democrats.
Per the polling, 71 percent of Democrats and 31 percent of Republicans are more likely to vote for candidates who support the right to abortion. So are 46 percent of Independents. At the opposite end of the spectrum, a much smaller 8 percent of Democrats and a comparable 36 percent of Republicans are more inclined to vote for candidates who oppose the right to abortion. Only 15 percent of Independents would join them.
“Between now and November’s midterm elections, we’ll surely hear more arguments about the wisdom of compromising on reproductive rights,” Vox’s Anna North wrote of the poll. “But the PerryUndem findings suggest that when it comes to the issue of abortion, tacking right may not be smart politics.”
Doing so could instead amount to flushing pro-choice political capital down the drain at a time when it could prove critical. Democrats may be well positioned to win back the House, thanks to GOP defections from vulnerable seats and the public’s dissatisfaction with Trump. On abortion specifically, Republicans have used the House to cultivate restrictions, such as its recent debut of a federal “heartbeat bill,” or total abortion ban. Democrats in charge of the House could put an end to the parade of GOP abortion restrictions, even if Republicans maintain control of the Senate.
Unless, that is, Democrats pander to the imaginary crowd of abortion opponents in their ranks.
Several high-profile Democrats in 2017 repeatedly cast off the notion of an abortion “litmus test” as an indicator of party loyalty, going so far as to invite anti-choice candidates into the fold. SBA List pounced on the self-inflicted vulnerabilities to shame Democrats and later abortion care.
“Odds are, we’re not going to win this vote [on the 20-week ban],” Dannenfelser told Rewire last year. “But Democrats, evidenced by the big arguments within the Democratic Party about whether this is a litmus test, are really having trouble advancing late-term abortion as a humanitarian cause. That’s what we want to highlight.”
Dannenfelser and her allies are fudging the facts on abortion, especially later abortion care. The overwhelming majority—89 percent—of all abortions occur within the first trimester. The 1.3 percent that occur after 20 weeks’ gestation, or a little more than midway through the second trimester, can be attributed to a variety of factors, from medical issues that threaten a pregnant person’s health or life, to the discovery of nonviable pregnancies, to GOP-driven state-level restrictions that delay the ability to access care.
Their casting of later abortion care in a particularly negative light doesn’t conform with public opinion either. Americans were evenly split, 46 percent to 46 percent, in their support or opposition to 20-week abortion bans in their state, according to a January 2017 Quinnipiac University poll. But public support was higher in a 2016 Harvard T.H. Chan School of Public Health survey that injected nuance into the questions. Sixty-one percent of Americans said they opposed legal abortion after 24 weeks. But 59 percent supported it when provided with an example—in this case, Zika—of a severe risk to a fetus’ health.
Altogether, the findings give credence to some basic inferences. By shifting right on abortion, Democrats running for office risk alienating core voters, especially Black women who face disproportionate consequences from anti-choice policies and deliver victories for reproductive rights and Democrats alike, even in traditionally red states like Alabama. And while abortion foes have bet big on demonizing later abortion care, their caricature of it may be a harder sell to the public than they counted on.
Abortion Opponents Challenge the Rules
Though some so-called establishment Republicans and anti-choice groups may have been playing politics in setting up the Senate’s 20-week vote, they still hope to pass the ban sooner rather than later.
At least one lawmaker—Sen. James Lankford (R-OK), a former Bible camp director behind perennial congressional GOP-led efforts to criminalize a common medical procedure used after miscarriages and during second-trimester abortions—downplayed the political machinations behind the Senate’s 20-week ban. “I want to pass it,” Lankford said, according to a CQ Roll Call report. “So our goal is not just to make messages; it’s to get it done.”
Twenty-week abortion bans with varying exceptions have already been enacted in 21 states: Alabama, Arkansas, Arizona, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin. Federal courts have blocked 20-week bans in two of those states: Arizona and Idaho.
Additional legislative and judicial backstops, however, complicate efforts against legal abortion care and the Democrats who support it.
Legal experts believe 20-week bans are unconstitutional because they undermine a key provision of Roe v. Wade, the 1973 U.S. Supreme Court case that established the right to an abortion until fetal viability. Fetal viability differs for each pregnancy, but generally occurs around 24 weeks’ gestation. For now, in theory, the courts could stop a nationwide 20-week ban that somehow managed to pass the full Congress and garner Trump’s promised signature into law.
Trump and Senate Republicans have, of course, partnered to remake the federal judiciary in their anti-choice image, clearing the way for a 20-week ban and other abortion restrictions to reach the Supreme Court and potentially clash with Roe. Senate Judiciary Committee Chair Chuck Grassley (R-IA) is pushing through Trump’s radical nominees, even if that means spitting in the face of Senate tradition that allows individual lawmakers—i.e., Democrats—to object in committee. Senate Republicans have then easily confirmed anti-choice nominees to lifetime slots on the federal bench, thanks to a rule change under the chamber’s former Democratic majority leader, Harry Reid (NV), who eliminated the filibuster and allowed a simple 51-vote majority to confirm most presidential picks.
McConnell last year went a step further in “nuking” the filibuster for Neil Gorsuch’s path to the Supreme Court. So far, McConnell has held firm against pressure from Trump to end it altogether, even though a simple majority would enable the 20-week abortion ban to become law. And thanks to the conservative pipeline to the judiciary, a federal ban could survive an all but certain Supreme Court challenge should Trump appoint, and Senate Republicans confirm, more justices in Gorsuch’s mold.
Rep. Trent Franks (R-AZ), the original lead behind the House bill, frequently criticized the filibuster, and McConnell, over abortion bans. Franks in December resigned from the House when news broke that he had asked female staffers to bear his child via surrogacy.
At least one anti-choice group has picked up where Franks left off.
“Pro-life Americans would finally have a groundbreaking victory for life in the U.S. Senate if the vote passed with majority rules as it should,” Students for Life of America President Kristan Hawkins said in a statement. “It’s time for a rule change.”
Sen. Lindsey Graham (R-SC), the Senate bill’s lead sponsor, opposes the change. “It’s frustrating, but you know, we won’t always be in charge, and I think most people in the pro-life community understand that,” he told Politico last year.
And still, intra-movement fighting poses another threat to the strategy around the 20-week ban.
Rep. Steve King (R-IA), a prominent white nationalist, recently told LifeSiteNews that there’s a “turf battle” brewing among anti-choice groups. King expressed resentment that House Majority Whip Kevin McCarthy (R-CA) and the anti-choice group National Right to Life have prioritized the 20-week ban and the “shock value” Born-Alive Abortion Survivors Protection Act over his total abortion ban.
Ultimately, the anti-choice end runs have shown conservatives’ electoral hand. Whether they win is not as certain as it is transparent.