In an op-ed for Monday’s New York Times, Josh Marshall made a very smart, very clear suggestion to Democrats as they face a daunting lineup of Senate races in November.
Make it a nationwide campaign to preserve the ability to get an abortion. As the Supreme Court prepares to reverse and overturn the 50-year rule of Roe v. Wade, Democratic Senate candidates should run on a pledge to enact Roe into a federal statutory law so that it no longer depends on the continuation of the Supreme Court ruling in the case.
This makes sense to me for several reasons. I’m pro-choice and I’ve always thought that dividing the nine months of a typic al pregnancy into three trimesters, with abortion available during the first trimester, subject to state regulation in the second trimester, and banned in the third trimester was a reasonable compromise. But it has always struck me as the kind of compromise that should be made by legislators, not courts pretending to find such a regimen in the shadowy “umbra” or “penumbra” of other rights, like the general right to privacy, as it is in this case.
There is little doubt that Congress would have the right by federal statue to set such a national standard, based on trimesters. And according to Marshall, polling on the subject has suggested that, “Roughly two in three Americans oppose overturning Roe and almost 60 percent support passing a bill to set Roe’s protections in a federal law. What’s more, polls showed a rising number of voters listing abortion as their top midterm issue after news of Roe’s imminent demise leaked in the form of a draft court opinion published by Politico.”
Marshall quotes Minnesota Sen. Amy Klobuchar that the issue of Roe’s future should be taken to the ballot box in November. His suggestion of Congressional legislation would make clear how that would work.
The political/electoral analysis is complicated by the fact that only a third of Senate seats are on the 2022 ballot. Marshall didn’t supply state-by-state numbers that would show which states are reliably pro- or anti-abortion. But he does write that national polling suggests that 60 percent of Americans favoring keeping abortion legal. He also says that the number of voters who say keeping Roe is a top midterm issue, with a hint that his idea would help Democrats in close Senate races.
If Roe is about to be overturned as the leaked opinion suggests, it is very likely, abortion would still be legal or illegal on a state-by-state basis, meaning some states could still ban it completely. But if Marshall’s idea worked, people in all states would have at least some access to an abortion without having to travel out-of-state.
And, to be clear, Marshall isn’t just calling for commitments from Democratic Senators to enact Roe into federal law, but also – if the measure was met with a Republican filibuster (as it almost surely would be) – to also vote to set aside the normal filibuster rules, “to ensure that a majority vote would actually pass the bill and send it to the White House for the president’s signature.”