Senate Republicans are dodging questions about whether they would seek restrictions or bans on abortion at the federal level if the Supreme Court overturns the Roe v. Wade decision and the GOP wins win back congressional majorities.
The strong possibility the GOP could get such a chance was signaled this week when a draft ruling by five conservative Supreme Court justices leaked to Politico. The draft did overturn Roe, though Chief Justice John Roberts on Tuesday said it did not represent the final views of the court.
The draft would leave abortion laws up to individual states — or the federal government should it act on a nation-wide law. Republicans hope to take back majorities in the House and Senate this fall and are seen as having good odds to do so given a string of issues hounding President Biden.
But Republicans are not eager to discuss a push for federal abortion limits.
“Let’s see how this shakes out,” Sen. Lindsey Graham (R-S.C.) said when asked if he supported a federal abortion ban.
Sen. Chuck Grassley (Iowa), the top Republican on the Senate Judiciary Committee, said he did not want to “speculate” about what might happen before the decision is formally released.
The reticence reflects the risk of a political backlash if Roe v. Wade is overturned, and if Republicans go a step further and enact restrictions on the federal level, rather than leaving the issue entirely to each state.
“They’re like the dog that caught the bus,” said Senate Majority Leader Chuck Schumer (D-N.Y.). “They know they’re on the wrong side of history. They know they’re on the wrong side of where the American people are. They know they’ll pay consequences in the 2022 elections. Their spin-masters are telling them to avoid the subject.”
Still, illustrating the delicate balancing act Republicans face, there will be calls from anti-abortion groups and some GOP lawmakers for federal action if Roe is overturned and Republicans win back majorities in Congress.
Sen. James Lankford (R-Okla.) said he “absolutely” supports a federal ban on abortion.
“There’s not the votes on a federal abortion ban at this point, but I think every child’s valuable and I think we will get there eventually,” he said.
Even if Republicans win back the House, Senate and White House, if the filibuster remains in tact, the lawmakers would need 60 votes in the Senate for abortion limits, an extremely high hurdle.
Jennifer Popik, director of federal legislation at National Right to Life, said there would be “an important space for Congress” and “I think these votes are good to have,” even if the path for them to pass is steep.
She said two leading options among GOP lawmakers are bans on abortion at 15 weeks, and a “heartbeat” bill, which would ban abortions around six weeks.
“Clearly the states will play a very important role in that but there will also be a federal role as well,” said Sen. Steve Daines (R-Mont.), when asked if he supported a federal ban on abortion.
He declined to get into details of how many weeks into pregnancy any ban would begin.
“That will all be part of what happens next,” he said.
Highlighting a split among Republicans, though, some GOP lawmakers said they oppose a federal ban on abortion, and that the issue should be left up to the states.
Sen. John Cornyn (R-Texas) said simply “no” when asked if he supported a federal abortion ban. “Actually, I don’t think a federal law would be constitutional,” he added.
Sen. Deb Fischer (R-Neb.) also replied “no” when asked about support for a federal abortion ban and said the issue should be left up to the states.
Polling indicates the dangers for Republicans in leaning too hard into abortion restrictions.
A Washington Post-ABC News poll at the end of April found that 54 percent of U.S. adults think the Supreme Court should uphold Roe v. Wade, compared to 28 percent who say it should be overturned.
Abortion bans at six weeks or 15 weeks both polled at 36 percent support, with 58 percent and 57 percent opposed, respectively.
Sen. Ron Johnson (R-Wis.), who faces a competitive reelection race in November, declined to directly answer on Tuesday when asked if he supports a federal abortion ban, showing his phone screen and saying, “I’m reading the decision right now.”
States are likely to be the initial battleground if Roe v. Wade is overturned. The Guttmacher Institute projects that based on their current laws on the books, 26 states are “certain or likely” to ban abortion if the decision is overturned.
Asked about a federal abortion ban, Sen. Rand Paul (R-Ky.) pointed to the states.
“I wouldn’t say absolutely no,” he said. “But I think letting the states figure it out is maybe the best way to go.”
