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What will Democrats do in a post-Roe reality?

December 3, 2021, 1:00 PM UTC

The Supreme Court isn’t likely to issue a decision on the case that could overturn the right to abortion in the U.S. until next year, but Democratic lawmakers and pro-choice advocates are already trying to prepare for a world without those federal protections.

During oral arguments on Wednesday, the Supreme Court’s conservative majority appeared to side with Mississippi in the the case of Dobbs v. Jackson Women’s Health Organization, which involves a 2018 Mississippi state law that bans nearly all abortions after 15 weeks, including in cases of rape or incest. The state’s argument, that the issue of abortion should be decided locally and not by the federal government, would reverse Roe v. Wade and Planned Parenthood v. Casey, two landmark cases that legalized national abortion access. 

The court previously established with Roe v. Wade in 1973 that states couldn’t interfere with the decision to have an abortion during the first trimester of pregnancy, and prevented states from enacting outright abortion bans in the second trimester. In 1992, Planned Parenthood v. Casey reaffirmed that states couldn’t ban abortions before fetus viability, which is around 24 weeks.

“If it really is an issue about choice, why is 15 weeks not enough time?” Chief Justice John Roberts asked Wednesday. 

If the court rules in favor of Mississippi, 26 states would almost certainly implement total abortion bans based on a combination of pre-existing “trigger laws” that had previously been overridden by Roe, according to an analysis by the Guttmacher Institute, a reproductive health organization. Those laws would immediately go into effect.

If that happens, Democrats will be forced to fight for national reproductive rights outside the courts, something the party hasn’t had to grapple with in nearly 50 years. But exactly how they would do that is still unclear.

Congressional legislation, namely the Women’s Health Protection Act, already passed the House in September and would codify abortion rights into federal law. The bill advanced along party lines in a 218-211 vote.

“We cannot wait for the court to strike down Roe and strip us of our fundamental human right to bodily autonomy,” Rep. Carolyn Maloney (D-N.Y.), one of the bill’s cosponsors, told Fortune. “The Women’s Health Protection Act would establish a statutory right to abortion care across the country and is an important step to ensuring that all pregnant people are free to make their own decisions about their bodies.”

But the legislation is unlikely to pass the Senate, since Democrats would need a filibuster-proof 60-seat majority to get anything through the chamber—a near-impossible task in the current political climate.

“I don’t think there’s 60 votes in the Senate,” longtime Democratic strategist Joe Trippi told Fortune. But he added that he believes a reversal on Roe could, in a best-case scenario for Democrats, put pressure on moderate Republicans to flip on the issue and help “get a debate to the floor.”

Besides the Women’s Health Protection Act, Democrats could try passing the Equal Access to Abortion Coverage in Health Insurance (EACH) Act, which would require coverage for abortion services in federal health insurance programs. It was introduced in the House in March 2021 by Rep. Barbara Lee (D-Calif.).

​​“Roe v. Wade is the bare minimum that can be done to protect abortion access,” Lee told Fortune. “But now, more than ever, it’s crucial that we keep working toward expanded, equitable abortion access, and we will continue to do that in Congress by passing the Women’s Health Protection Act and the EACH Act.”

But the EACH Act is on less solid ground than even the Women’s Health Protection Act: It has yet to make it through either chamber of Congress. It’s currently languishing in the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, where it’s under further consideration.

In the event that neither the EACH Act nor the Women’s Health Protection Act passes through both chambers of Congress (which they probably won’t), pro-choice advocates will be left trying to implement reform at the state level, namely by flipping vulnerable GOP-led state legislatures and expanding abortion access in states that are already friendly for reproductive rights. An individual state could affect abortion access by allocating more funding for the procedure, or by repealing parental consent requirements that exist in states like Florida and Ohio.

“We have to look at how we get people mobilized in places to get those elected who would best represent reproductive rights,” said Christian F. Nunes, president of the National Organization for Women, a pro-choice group. 

Democrats are still gauging whether or not abortion can be a winning issue in upcoming midterm elections. The majority of Americans support abortion access in at least some circumstances, according to Gallup polling. And a November survey by the Democratic Congressional Campaign Committee (DCCC), first reported by NBC, found that a party message that centered on denying Republicans the ability to outlaw abortion was among the most effective subjects with voters. 

“Taking away abortion rights was widely negative with the Democratic base voters as well as swing voters,” DCCC communications director Chris Hayden told Fortune. “Politically this is really bad for Republicans.”

But Trippi cautioned that even voters sympathetic to abortion rights might be slow to mobilize around the issue. 

“It may take some time for the consequences to really sink in,” he said, referring to the potential end of Roe, and the right to access to abortion nationwide. “There’s a lot of ‘No way’ with voters. They just can’t perceive that it would be overturned. It may take a while for people to realize the ramifications.” 

Kristin Ford, the vice president of research for NARAL Pro-Choice America, a reproductive rights nonprofit, told Fortune the onus will then be on groups like NARAL to communicate the severity of GOP-led attacks on reproductive rights.

“Part of our mandate is to help people understand how real the threat is,” she said. “The fact that we could be looking at a scenario where half the country doesn’t have access to abortion feels unfathomable to many Americans.”

Reversing Roe would cause an access gap, between those who have the means and resources to travel for an abortion, and those who don’t, said Nunes.

“Those with money are still going to have access to abortion,” she said. “Certain communities are going to be the ones that are most affected by this access: women of color, women with disabilities, LGBTQIA members, women in poverty. We’re going to go back to a time where people have to seek unsafe underground abortion practices since they can’t afford to travel to states.”

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