As Roe vs. Wade teeters, Republicans are fractured about what to do next. The split may turn into a chasm if they take back full control of Washington in 2025.
Some in the GOP now acknowledge they may eventually pursue national abortion restrictions should a majority of the Supreme Court follow through on its draft opinion overturning Roe, after spending several days trying to deflect by focusing on the document’s unauthorized disclosure. And there’s a range of opinions among Hill Republicans about what comes next: leave abortion policy to the states, pursue more modest restrictions or go all-out to install a ban nationwide.
For the most part, though, Senate Republicans agree that in a post-Roe landscape, with states left to install their own laws, the GOP may well find itself reorienting around a national barrier to abortion.
“There’s no secret, I want to protect every single child. So if there’s an opportunity to be able to move, protect more children if we can, I’m going to do it,” said Sen. James Lankford (R-Okla.). But, he added that the 60-vote threshold required to get most legislation through the Senate would present “the same impasse … There’s a big difference in voting for and actually moving legislation.”
“I’m definitely advocating: Let the states handle this,” added Sen. Ron Johnson (R-Wis.), who is up for reelection this year. “Maybe once that process has played itself out, yeah. Maybe there’s a point for federal legislation … a restriction that we probably ought to recognize nationally.”
Anti-abortion groups and GOP lawmakers spent years pursuing a 20-week federal abortion ban as a consensus party position, in addition to so-called “born alive” bills, which would punish health care providers that do not care for an infant who survives an abortion attempt. Now, the Supreme Court’s likely overturning of Roe next month is fracturing that accord, which often played out in failed Senate floor votes each winter when the anti-abortion March for Life came to Washington.
It’s clear the GOP doesn’t want to run on national abortion restrictions as its platform this November. Even so, Republicans need to take back Congress this fall if they want to pursue nationwide limits in the future.
Senate Minority Leader Mitch McConnell (R-Ky.) told USA Today last week that a national ban was “possible” but said on Monday he would “never support smashing the legislative filibuster on this issue or any other.” With that in mind, many Republicans want to put talk of abortion legislation way on the back burner, seeking instead to recapture majorities on the Hill.
Importantly, while the GOP is sure to fall short of capturing a filibuster-proof majority in the Senate this fall, the practical hurdle to any further abortion limits would be 67 votes in the upper chamber — as long as President Joe Biden is in office, he is poised to veto any such legislation a Republican Congress might send to him.
Senate Minority Whip John Thune (R-S.D.) said that while he personally supports abortion restrictions, the debate was “hypothetical” and there is no unified position in the GOP.
Sen. John Cornyn (R-Texas), who is close to McConnell, sounded a similar note. He said that if Roe is struck down, he doesn’t see the need for federal legislation despite supporting a 20-week abortion ban in the past: “I don’t think it’s really an appropriate topic for Congress.”
The acknowledgment that Roe will likely be overturned is a shift for the GOP, which spent much of last week condemning the disclosure of the draft opinion to POLITICO. Cornyn observed that “we’ve come a long way from a leaked draft opinion that would give it back to the states.”
“There will be a lot of different approaches, a lot of different ideas. We are a big party and we have a lot of different thoughts and ideas,” said Sen. Joni Ernst (R-Iowa). “I am adamantly pro-life. I will always want to do what is right for the pro-life movement.”
Sen. John Kennedy (R-La.), another GOP incumbent, added that “returning the issue to the states does not preclude the United States Congress from legislating on the subject of abortion” but said he wants see how the states address it initially.
Beyond what comes next after a toppling of the 1973 decision, Senate Republicans’ individual views on abortion range from Lankford and Ernst on the anti-abortion end of the spectrum to Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), who have their own legislation to codify Roe. And as Republicans scramble to find sort of consensus, their leaders brushing aside talk of whether they might try in the future to restrict abortions on a national basis, Democrats are leaning in strongly to defend abortion rights.
On Wednesday, Senate Majority Leader Chuck Schumer (D-N.Y.) will force a vote on legislation from Sen. Richard Blumenthal (D-Conn.) codifying Roe, which is expected to fail. McConnell brought up the Democratic legislation during Monday evening’s leadership meeting, describing it as extreme, according to two attendees who spoke candidly on condition of anonymity.
Democrats, meanwhile, are playing up McConnell’s suggestion of a future national ban push and warning of GOP legislation that goes beyond overturning Roe, should Republicans take back the majority and the White House.
Sen. Elizabeth Warren (D-Mass.) said Monday that McConnell “certainly opened the door for a federal abortion ban” and warned that “every person in America should listen to him.”
McConnell cast Democrats’ position as unpopular because it would allow late-term abortions in some states, asserting on Monday that the “radicals are running the show.” But Senate Majority Whip Dick Durbin (D-Ill.) said he was “skeptical” McConnell wouldn’t change the chamber’s rules after vowing not to, should it suit him. Durbin’s reason for that doubt? “Merrick Garland.”
Democrats’ rally around abortion rights is so strong that a growing number of them up for reelection this fall are coalescing around a fresh push to weaken the filibuster in response, despite zero chance of a rules change going anywhere in the evenly divided Senate.
“I’d support an exception to the filibuster on this issue,” said Sen. Maggie Hassan (D-N.H.), who faces voters in November. “[Republicans have] already achieved what they wanted to by making an exception to the filibuster when it comes to Supreme Court nominations. And I think they will not hold back [on abortion restrictions] if they think this is something they need to do.”
Meanwhile, the GOP’s zipped lips on federal abortion constraints even apply to Sen. Lindsey Graham (R-S.C.), who has introduced legislation multiple times to enact a 20-week ban.
Summing up the mood of the majority of the conference, Graham said Monday: “Call me in 2025.”
