WASHINGTON — The new Texas law banning most abortions after six weeks, and the Supreme Court’s decision not to block it, has already heated up the abortion debate into an election issue for 2022 congressional races.
And more conflict is coming. The conservative-led Supreme Court is scheduled this fall to hear a challenge to a Mississippi law that bans most abortions there after 15 weeks, another challenge to the 1973 Roe v. Wade decision that found a constitutional right to abortion.
A decision in that case could impact other states, including North Carolina, that have or may attempt to impose limits on abortions at earlier and earlier points during pregnancy. The court’s decision is expected in the summer of 2022, just months before congressional midterm elections in November.
“In this next election cycle, women’s issues are going to be top of mind and reproductive freedom is one of those issues really in the crosshairs,” said U.S. Rep. Deborah Ross, a Wake County Democrat first elected in 2020.
Republicans and Democratic candidates gearing up for November 2022 seem eager to have a fight about abortion, which is likely to boost turnout.
Anti-abortion groups protested last month at Ross’ Raleigh office, angered by U.S. House Democrats’ removal of language banning the use of federal funds to pay for abortion in its spending bill. Some form of the language, known as the Hyde amendment, has been included in federal budgets since 1976.
Ross, who says women have a right to legal abortion, called the protests outside her office “a badge of honor.”
North Carolina will fill an open U.S. Senate seat in 2022, a high-stakes election of national interest because it could determine which party controls the chamber. Debates about abortion will be in play in that contest, said GOP Senate candidate Mark Walker.
“The protection of life should be a key issue in the 2022 election — one that I can help settle when we take back the majority in the Senate and advocate for the dignity of life at every stage,” said Walker, a former U.S. representative.
North Carolina Democrats running for Senate have called on Congress to pass a law guaranteeing the protections put in place by the 1973 Roe decision, which has been challenged repeatedly.
Support on the court for access to abortion has waned. The court, with three Trump appointees, issued a 5-4 decision on procedural grounds allowing the Texas law to take effect, a sign to some that the conservatives on the court are prepared to roll back, if not undo, the Roe decision.
“The fact they just ruled in favor of Texas does not bode well for the upcoming constitutional battle,” said Democrat Jeff Jackson, a state senator and candidate for U.S. Senate.
Jackson said he favors making a law to enshrine the protections afforded by Roe v. Wade because “it would work. It’s a faster, simpler solution.”
Democratic Senate candidate Cheri Beasley, a former chief justice of the North Carolina Supreme Court, said the abortion issue and health care access more generally is top of mind for many in the state.
“The Supreme Court’s inaction makes this all incredibly dangerous and puts lives in danger. Congress must take action to protect reproductive freedom,” Beasley said. “Congress really must codify Roe v. Wade. It really ought to be the law of the land. It’s the job of the Senate to make laws and not the Supreme Court.”
Though Democrats have slim majorities in the U.S. House and Senate, it is unlikely that they would be able to pass laws enshrining the right to have an abortion over Republican objections, especially in the Senate where most legislation now requires a filibuster-proof 60-vote threshold. Democrats control 50 seats. The House is planning to vote on legislation.
Some politicians say more ambitious strategies are needed.
“This is another instance of why we need to abolish the filibuster. We cannot codify Roe v. Wade without ending the filibuster,” said Democratic Senate candidate Erica Smith, a former state senator. “The only way we’re going to make sure every woman in this country can have the ability to choose what happens to her body and when is we have to abolish the filibuster and expand the court.”
Democratic calls for expanding the Supreme Court from its current nine members emerged during the 2020 election.
Senate Republicans’ refusal to hold hearings or a vote on former President Barack Obama’s 2016 nomination of Merrick Garland to the court and their rush to confirm Justice Amy Coney Barrett in the weeks before the 2020 election inflamed many liberals.
Senate Republicans narrowly confirmed three Trump appointees in his four-year term, including Barrett, who replaced liberal icon Ruth Bader Ginsburg, pushing the court’s ideological balance to the right. Supreme Court confirmation requires just 51 votes.
“For me, it is unstacking the court,” Smith said.
Other Republican-led states could follow Texas’ novel approach, which has — thus far — allowed it proceed without courts stopping it. State officials do not enforce the ban, a move specifically designed to make it more difficult to sue to stop the law.
Instead, citizens are allowed to sue anyone who performs an abortion or anyone who aids in helping a woman get the procedure, including someone who drives them to the clinic, after a fetal heartbeat is discovered, The Texas Tribune reported.
Those suing do not have to have any connection to the woman or the clinic. And if they win, they can recover their legal fees and $10,000.
North Carolina Republicans in Congress cheered the Texas outcome.
“LIFE is winning,” tweeted U.S. Rep. Virginia Foxx, from Western North Carolina.
“The pro-life movement is winning,” tweeted Rep. Madison Cawthorn, also from Western North Carolina.
An adviser to U.S. Rep. Ted Budd’s Senate campaign said Budd is pro-life and glad that Trump and Senate Republicans “elevated conservative judges to the Supreme Court who value the Constitution and life.” An adviser to former Gov. Pat McCrory’s Senate campaign said McCrory is pro-life and “his positions on these issues are well-known and well-vetted.”
Ross, who is among 20 Democrats being targeted for their abortion rights stance by the anti-abortion Susan B. Anthony List, said she supported removal of the Hyde language because “all women regardless of their economic status are entitled to the full panoply of health care. All women. We cannot discriminate against women due to their economic status.”
Ross said the fight over reproductive rights is part of a larger battle, an argument Democrats are likely to make more forcefully before November 2022.
She said the same people who want to interfere with women’s health care decisions and want to punish doctors don’t want to invest in Medicaid, education, pre-K and child care or raise the minimum wage — all issues that she said impact women and would help mothers.
“The most important thing is women are smart and they’re connecting the dots,” she said.
