There was so much change to celebrate on Election Day: the Democratic takeover of the House and several state governments, the historic firsts in all of the women of color elected to state and national office, and the voting rights advances in many jurisdictions. But, there was one thing that remained constant on Tuesday, or even took a step backward—abortion rights, which are hanging by a very old and precarious thread.
Voters passed anti-abortion constitutional amendments in Alabama and West Virginia this week. These were major disappointments and, especially once West Virginia takes action to ban public funding for abortion, will have serious effects on abortion access. But neither of these developments takes either of those states closer to actually banning abortion. That will only happen when Roe is overruled, which with the changes in the U.S. Senate, is ever so slightly more likely now than it was before the election.
As everyone knows, with the addition of Brett Kavanaugh to the Supreme Court, conservatives hold a 5-4 majority. It’s no secret that this new majority could, if the right case comes along, result in severely cutting back or even overturning Roe v. Wade. Since the Supreme Court wasn’t on the ballot, nothing that happened Election Day changed this balance.
What did change, though, was the Senate. Not who controls the Senate—the Republicans controlled the Senate before the election and will continue to control the Senate after the election. Rather, what changed was by how much. Right now, three races are still undecided, but we know for sure that the Republicans hold 51 seats. The Democrats failed to pick up seats they had been eyeing in Texas or Tennessee, and they lost seats in North Dakota, Indiana, and Missouri. The only Democratic gain was in Nevada.
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The bad news for Democrats is that the three seats where results aren’t final look tough. The Republican candidate is ahead in Arizona and Florida, and the third state is Mississippi, which has a runoff next month. It is very likely that the final tally for the next Senate will be that the Republicans hold an eight-seat margin: 54 to 46.
So why does this change matter? The margin makes a difference because Justices Ruth Bader Ginsburg and Stephen Breyer are already at the age that many Americans are long retired. Those two liberal abortion-rights supporters are 85 and 80, respectively. Much to liberals’ chagrin, they aren’t going to be on the Court forever. (Just this morning, Justice Ginsburg landed in the hospital after reportedly fracturing her ribs during a fall.) And when they retire or when they pass away in office, the Senate has the constitutional power to confirm whoever is nominated to replace them.
If one of them leaves the Court over the next two years, President Trump will have the authority to nominate a successor. With a 54-46 Republican controlled Senate, if that’s what it winds up being, the chances of blocking a sixth conservative from the Court are somewhere between slim and impossible. After all, if Brett Kavanaugh can be confirmed when the Republicans had only a two-seat majority, another conservative justice will easily be confirmed with an eight-seat majority.
This majority would also give “moderate” Republican senators in purple states, like Susan Collins in Maine or Cory Gardner in Colorado, more freedom to vote against a Trump nominee. These Senators and any others like them won’t face the same pressure from their party because their votes matter less. Without that pressure, they could vote against the nominee to try to convince their constituents that they are more moderate than they actually are in the run-up to their re-election campaigns in 2020.
Where the election this week gets even more consequential is after Trump’s first term is over. Let’s say these two justices survive the remaining two years of Trump’s first term. If President Trump wins re-election in 2020, he will be president through ages 91 and 86 for Ginsburg and Breyer. There’s almost no chance they can both stay on the court that long. The Democrats’ only hope in that scenario is being able to stop the nominee in the Senate, but the Democrats’ chances of winning the Senate back in 2020, when they have a much more favorable map, got that much harder this week. They now have to pick up a net of five seats in that election. If they don’t do that, which seems unlikely if Trump wins again, a second-term President Trump could potentially add another two justices to the Court.
Even if Trump is a one-term president, a Democratic president probably needs a Democratic Senate to get a new justice on the Court. After the Merrick Garland debacle and the Brett Kavanaugh dumpster fire, no one would be surprised if a Republican-controlled Senate refuses to confirm a Democratic nominee at all, no matter if nominated in the first or last year of the presidency. This would leave the five-justice conservative majority, with only three or possibly two liberal justices as a check.
And that’s just the Supreme Court. With a larger GOP majority in the Senate, President Trump will be able to continue to, as he has been doing with much success so far, pack the lower federal courts with young right-wing judges with no check whatsoever. These lower court judges will be the first to address state-level abortion restrictions and, with the conservatives Trump has already put on these courts, they are more likely to allow states to restrict abortion. When this happens, the Supreme Court doesn’t even have to get involved. It just has to allow these lower court decisions to stand, and abortion rights will suffer without the Kavanaugh court even touching the case.
Not all is lost though. There is some good news about abortion from this election. Oregon voters rejected a constitutional amendment that would ban public abortion funding. There are now 14 states where Democrats control the governor’s office and both chambers of the legislature, and four fewer states where Republicans do. This should prevent anti-abortion legislation in the latter states and maybe even mean proactive abortion rights legislation in the former. And on the national level, a Democratic House of Representatives means there will be no anti-abortion legislation from Congress for the next two years.
These are definitely reasons to celebrate this week. But not without recognizing the brewing storm clouds from the increased Republican majority in the Senate.