With news breaking on Monday night that Politico had obtained a draft of an opinion from February in which the Supreme Court appeared ready to strike down Roe v. Wade, the midterm election cycle just got a whole lot more interesting.
The leaked draft itself is extremely controversial given the court’s tight-lipped nature and how everyone inside the Supreme Court building is bound by strict confidentiality. That includes staff, law clerks, and the justices themselves.
The identity of the leaker and motives are yet unknown, though observers tend to believe it may have been someone who wanted to release the ruling with the hope of stirring up animosity or public pressure on the court to change the ruling before it’s released to the public in June or July.
Repealing Roe v. Wade wouldn’t outlaw abortion, but rather send the issue back for states to regulate. Some states, like California and Colorado, for example, have already staked claim to being “abortion sanctuaries” from other states where the practice would be immediately banned or curtailed if Roe is overturned.
Democrats, with waning interest from voters defeated by President Biden’s poorly rated job as president, see a chance to motivate abortion advocates to the polls in November, specifically women:
The Supreme Court’s looming decision on Roe v. Wade is one of those external factors that does have the ability to fundamentally alter how the parties — and their bases — see the coming election.
Sensing that, Democrats immediately began to cast the 2022 midterms as a straight referendum on the decision.
“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” Biden said in a statement Tuesday. “And it will fall on voters to elect pro-choice officials this November.”
“Republicans just gutted Roe v Wade, the Constitution’s guarantee of reproductive freedom, and will ban abortion in all 50 states, if they take over Congress,” tweeted New York Rep. Sean Patrick Maloney, who runs the Democrats’ House campaign arm. “Only Democrats will protect our freedoms. That is now the central choice in the 2022 election.”
“Women are going to go to vote in numbers we have never seen before,” Minnesota Sen. Amy Klobuchar said on CBS. “If they want to protect their fundamental rights to reproductive choice or their fundamental rights to anything, they had better go vote in the fall.”
All or some of that could be partially or entirely true, if the Supreme Court strikes down Roe v. Wade, many Democrats will become much more motivated to vote. On the other hand, that sword cuts in both directions.
If Republicans, an overwhelming number of which are pro-life, sense that the court ruling could be threatened by Congressional action, it will also create a driving motivational force to vote in November and ensure Democrats do not have a chance to expand or retain their majorities.
Chief Justice John Roberts confirmed the authenticity of the leak and promised a full investigation into the matter:
Chief Justice John Roberts has issued a statement confirming the leaked draft of a Supreme Court decision overturning Roe is genuine and he says the nation’s highest court will launch an internal investigation about the leak.
“Roe was egregiously wrong from the start,” Justice Samuel Alito wrote in the draft opinion of the court dated February 10.
Today, in a statement issued by the Supreme Court, Roberts condemned the leak.
“Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case,” he says.
As Roberts noted, this draft is not final, and positions or opinions could have already changed since this draft was dated in February. Some have speculated that the leak itself could help cement the ruling if indeed this is how the court is coming down on the issue. None of the justices would appreciate external public pressure applied to a normally private process of open debate and discussion among the justices internally. The justices, after all, are interpreters of the law, not political figures.
The end result will be a galvanizing force on both sides, waking up some Democrats who were adrift, and reinforcing Republicans who were already enthusiastic to vote in November.
The 2022 midterms just became the “abortion midterms” literally overnight.
