2020 did not leave abortion rights advocates with much hope for the future of Roe v. Wade.
Their position was tenuous from the outset. After Justice Brett M. Kavanaugh was confirmed in October 2018, Chief Justice John G. Roberts Jr. — a conservative — became the crucial swing vote on abortion cases. Conservatives strengthened their majority in October, when President Trump nominated Justice Amy Coney Barrett to replace longtime women’s rights champion Justice Ruth Bader Ginsburg after her death in September.
That gave conservatives a clear 6-3 majority, with Kavanaugh as a deciding vote on abortion.
Democrats now control both houses of Congress, after winning both Senate races in Tuesday’s Georgia runoffs. And while they are not likely to change the makeup of the Supreme Court — the oldest conservative justices are in their early 70s, too young to retire from their lifelong appointments — they could take other steps to protect abortion rights, revisiting legislation the Democrats could not hope to pass with a Republican Senate.
With a Democratic-controlled House and Senate — and President-elect Joe Biden in the White House — Democrats can think “bigger and bolder” on abortion, said Kwajelyn Jackson, the executive director of the Feminist Women’s Health Center, an abortion clinic in Atlanta. Since the Supreme Court ruled on Roe v. Wade in 1973, abortion rights advocates have relied too heavily on its precedent, she says. The Supreme Court, Jackson says, is supposed to be a “last stop” to protect abortion rights. Other laws and policies should prevent antiabortion legislation from ever reaching the highest court.
“The precedent Roe rests upon is not solid enough to actually protect abortion access in the way our people need it to,” she said. It’s especially inadequate for people of color, she adds, who are consistently failed and overlooked by the Supreme Court. “What are we going to put in place now to ensure that future generations won’t have to fight the same fight?”
Federal abortion legislation is now a real possibility, said Jennifer Dalven, the director of the Reproductive Freedom Project at the American Civil Liberties Union. Congress could pass the Women’s Health Protection Act, a piece of legislation that would outlaw a slate of abortion restrictions — like mandatory ultrasounds and requirements for doctors to obtain hospital admitting privileges — that have been instituted or attempted in antiabortion states.
“It’s intended as a tool to block all of these myriad state efforts that prevent people from getting abortion coverage,” said Dalven, the type of legislation that “chips away” at Roe v. Wade.
Even with a Republican Senate, when legislators knew it would never pass, Dalven said, the Women’s Health Protection Act secured 217 co-sponsors in the House. Once Biden takes office, Dalven said, the WHPA will almost certainly come up for a vote.
Congress could also repeal the Hyde Amendment, a budgetary provision that prevents federal funds from being used for abortion, making abortion far less accessible for low-income women. While Biden initially supported the Hyde Amendment, he changed his position during his primary campaign after pushback from women’s rights groups across the country.
A Democratic majority does not guarantee that Congress will move on these issues. In both houses of Congress, the Democrats only have a slim majority, said Joshua Edmonds, president of the Georgia Life Alliance, an antiabortion advocacy organization.
“The hold on power that pro-abortion activists have in Washington is very tenuous right now,” he said. “I would not expect anything radical to happen in the next few years.”
With the conservative Supreme Court, Edmonds says, it’s only a matter of time before “the core tenets of Roe are reversed or undermined.” A slight Democratic majority in the Senate will do nothing to change that, he said.
Biden will face a long list of pressing issues when he takes office. Even if Democrats could band together to pass federal abortion legislation, he might not want to expend that kind of political capital, said Mary Ziegler, a professor of law at Florida State University who specializes in abortion. Senators from swing states and districts, she said, will recognize the political risk of sweeping abortion legislation.
“The Democrats are quite united right now and something like the Hyde Amendment would divide them.”
After Ginsburg’s death, many abortion rights advocates spoke out in support of court-packing, appointing additional justices to the Supreme Court to even out the conservative majority. But that’s not likely to happen anytime soon, Ziegler said. The policy is still relatively unpopular, she said, and would create deep divisions within the Democratic Party.
Still, she said, with Democrats controlling the Senate, it’s now a vague possibility. The prospect of court-packing, however unlikely, could keep the Supreme Court from doing anything extreme on abortion, she said. Recognizing that the Democrats could potentially alter the structure of the Supreme Court, Ziegler said, the justices might avoid any abortion rulings seen as too much of a threat to Roe.
One thing that will certainly change with a Democratic Senate are lower-court appointments. During Trump’s presidency, Trump and Senate Majority Leader Mitch McConnell appointed federal judges at a “blistering pace,” Ziegler said, filling the lower courts with conservatives. While Biden can’t reverse those appointments, she said, his administration will be able to “stem the tide.” Older judges appointed during Bill Clinton’s presidency or early during Barack Obama’s presidency will be able to retire, she said.
Biden and soon-to-be Senate Majority Leader Charles E. Schumer will replace them with liberal judges, Ziegler said, far more likely to strike down antiabortion legislation before it ever gets close to the Supreme Court.