SCOTUS Finally Gave Conservatives What They Wanted. That May Become a Big Problem for Them.
It is one thing to use Roe v. Wade as a political punching bag and fundraising tool, a way to galvanize your conservative evangelical voter base into action. But it is another thing entirely to overturn a right that has stood for fifty years and ignite a conflagration, to be fought state by state, over reproductive rights that remain immensely popular even in red state America.
The draft opinion by the U.S. Supreme Court overturning Roe and Casey, assuming it will stand as written, will test exactly how out of touch religious conservatives and far-right extremists are with regular voters. Abortion will be front and center in every election in the country, and nowhere will it have a bigger effect than in key swing state races. That is because those states—today I’ll cover Arizona, Georgia, Michigan, and Wisconsin—will be electing officials whose votes and policies will determine whether “trigger bans” on abortions will be enforced or even more draconian anti-abortion laws will be imposed. The wedge issue of abortion that for decades fueled Republican turnout in a quest to overturn Roe could now supercharge turnout among women and young voters in these states. Here’s a run-down of how things look there.
Arizona is a “barely blue” state with a Republican governor and GOP-controlled legislature but two Democratic senators. It has on its books a statute from 1864, created when it was just a territory, that makes performing or helping to perform an abortion illegal unless necessary to save a woman’s life. It imposes a minimum two-year sentence for abortion providers. That law was suspended by Roe, but a new 2022 state law restricting abortion services specifically provides that it does not replace the old territorial law and makes knowingly performing an abortion after 15 weeks a felony for physicians, with an exception granted only for a “medical emergency.” While the law exempts women from prosecution for getting an abortion, any person who provides abortion services—regardless of when during the pregnancy—risks a minimum two years in prison. The upshot is that abortion services will all but disappear in the state, just as they did in Texas.
The 2022 Arizona governor’s race is for an open seat, and there is a wide-open primary battle in both parties. Now that it appears the individual states will be able to determine for themselves whether abortions may or may not be performed within the state, the power of the new governor to either veto or approve new, even harsher legislation (e.g. criminally penalizing any pregnant person within the state who receives an abortion) will be front and center on the minds of many voters.
In addition, an all-important Senate race for the seat currently held by Sen. Mark Kelly is a must-win for Democrats so that they can hold their slim majority in the chamber. Democrats hope to pass federal legislation codifying the protections of Roe, but they lack the numbers to overcome or even modify the filibuster rule in the Senate. If the Democrats were to win Senate races this year in every state won by Biden in 2020, including the key race in Arizona, they would count 52 votes in the Senate, enough to overcome the two Democratic filibuster holdouts.
Georgia’s political divisions closely resemble those in Arizona. The state went nominally for Joe Biden in 2020 and then elected two Democratic senators in tight run-off races, handing Democrats their razor-thin Senate majority. But the state legislature is dominated by Republicans, and the GOP controls the governor’s mansion as well. Georgia has on its books HB 481, a trigger law passed in 2019 that bans abortions after around six weeks when any electrical cardiac activity is detected in the embryo, which is just millimeters in size at that point. Abortion rights advocates consider that six-week rule an effective ban because many people do not even know they are pregnant at such a stage.
As in Arizona, the governor’s race in Georgia will be closely watched. Former U.S. senator and Trump-backed candidate David Perdue has promised that if he were elected governor, he would call a special session “to ban abortion in Georgia”—a step much more extreme than the current six-week ban. Further, all four GOP candidates for lieutenant governor said they support a complete ban on abortion procedures. “I don’t think it’s any doubt that Georgia will quickly move to try to outright ban abortions,” said Rep. Erick Allen, a Democrat running for lieutenant governor. “This is not a hypothetical. I think we are in a moment where we have to start resetting the battlefield of what is next after Roe is gone.”
In all likelihood, the governor’s race will be a rematch between incumbent Brian Kemp and voting rights activist and rising Democratic star Stacey Abrams. How and whether the state enforces HB 481, which goes into effect upon Roe being overruled, will be top of mind for many voters. Abrams will present herself as the last bulwark against even more restrictive abortion bans in the state. “As a woman, I am enraged by the continued assault on our right to control our bodies and our futures,” Abrams said in response to the news of the leaked opinion. “As an American, I am appalled by the Supreme Court breach and its implications. As the next Governor of Georgia, I will defend the right to an abortion and fight for reproductive justice.”
Also at stake is the seat of Sen. Raphael Warnock, who likely will face Trump-endorsed candidate Herschel Walker in November. Warnock’s race is another must-hold for Democrats in order to preserve their 50-seat majority. Warnock is a pro-choice candidate while Walker is anti-abortion, setting up a stark contrast on the question of Roe being federally codified.
Like some 26 other states, Michigan has an old statute on the books that will spring back into life if and when Roe is officially overturned later this summer. A 1931 law bans abortions within the state unless performed to save the life of the pregnant person. It contains no exception for rape or incest. Because the GOP controls the legislature there, it is highly unlikely that a new law superseding that statute will be passed. The current Democratic administration of Governor Gretchen Whitmer has sued to ask the Michigan Supreme Court to invalidate the 1931 law under the state’s constitution.
Gov. Whitmer is up for reelection this year, and her GOP opponents have come out strongly in favor of eliminating Roe, applauding the draft opinion by Justice Samuel Alito. “As governor, I will ensure that Michigan is a state that respects the sanctity of life,” tweeted Republican gubernatorial hopeful Kevin Rinke after the opinion was leaked. Another candidate, Tudor Dixon, issued a statement affirming “the preciousness of life.” Gov. Whitmer took the opposite stance: “Our work is more important than ever. I’ll fight like hell to protect abortion access in Michigan,” she tweeted.
Gov. Whitmer handily defeated her Republican opponent in 2018, but that was part of a larger “blue wave” of opposition to Republicans under Donald Trump. Whether 2022 will see a second surge of Democratic voters in Michigan in the wake of the overturning of Roe remains to be seen, but the threat of a total ban on abortions within the state could prove a strong motivator for the Democratic base.
As with many other states, an ancient statute still on the books in Wisconsin will kick back into effect the minute Roe is overturned. That 1849 law, passed a year after Wisconsin became a state, bans Wisconsin doctors from performing any abortions except to save the life of the mother, and it effectively would end all abortion services in the state. Doctors performing abortions could be charged with felonies and face up to six years in prison and $10,000 in fines. The law stands in stark contrast to popular opinion in the state, which mirrors that of the country: In a state poll last October by Marquette University Law School, 61% of voters said abortion should be legal in all or most cases while only 34% said it should be illegal in all or most cases.
Gov. Tony Evers, a Democrat who is up for reelection, reiterated his support for abortion rights on Monday after the leaked opinion was reported. “Our work to defend access to reproductive healthcare has never been more important,” he tweeted. “Before I became governor, I promised I’d fight to protect access to abortion and reproductive rights. I’ve kept that promise, and I will fight every day as long as I’m governor.” His GOP opponents, unsurprisingly, took the opposite view. Three of those hoping to unseat him, including former Lt. Gov. Rebecca Kleefisch, Tim Michels, and Kevin Nicholson, erupted in joy at the news. “It’s about time!” Kleefisch tweeted. “I pray this is true,” posted Nicholson. “Barbara and I have long worked for and prayed for this moment,” said Michels. A fourth Republican candidate, state Rep. Tim Ramthun of Campbellsport, has described himself as “hardcore, 100% pro-life without exceptions.” When Roe is gone, the question in Wisconsin will be whether even harsher penalties for abortions will be enacted by the GOP-controlled state legislature. Here again, Gov. Evers’s veto power could be the last line of defense against an even more radical anti-abortion agenda in the state, and that is likely to fuel strong support for him among the Democratic base.
Also at stake is the Senate seat now held by Republican Ron Johnson, who is already struggling in the polls and is a staunch pro-life legislator. Wisconsin is widely seen as one of the best pick-up opportunities for the Democrats and critical insurance against a loss in any of the four Democratic seats considered most vulnerable to the GOP in Arizona, Georgia, New Hampshire and Nevada. A loss in Wisconsin by Johnson could make the math to a 50-seat majority difficult for Minority Leader Mitch McConnell because the GOP would have to produce not one but two wins against the four Democratic seats in play.
While it is too early to tell precisely how seismic the overturning of Roe will be in American politics, there is little doubt that in close elections, enthusiasm will be the deciding factor. For decades, conservatives have been able to produce that enthusiasm among their voters by targeting abortion. Now that the proverbial dog has caught the car, it remains unclear how conservatives will maintain that momentum, particularly in the face of a wave of shocked and outraged Democratic voters.
These four states are certainly not the only places where the reverberations from the end of Roe could shake up the election. Both Texas and Florida have key governor races where extremist chief state executives are up for reelection. Both states deploy heavy gerrymandering to ensconce radical GOP politicians into state office, but polls show those leaders are very much out of step with what voters actually want on abortion rights. Just how far the Roe news could move the electoral needle will largely depend on how effectively Democrats mobilize and message around it between now and November. While the Supreme Court may have given conservative activists a long-awaited gift, with millions of Americans horrifically impacted by the fallout, it may also have given Democrats the very cause they need to rally their voters and stop the GOP.